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tv   Trump Ballot Battle at the Supreme Court  CNN  February 8, 2024 6:00am-10:00am PST

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s. adam schiff, the leading democrat, defended democracy against trump and the insurrectionists. he helped build affordable housing, lower drug costs, and bring good jobs back home. the choice is clear. i'm adam schiff, and i approve this message. this ad? typical. politicians... "he's bad. i'm good." blah, blah. let's shake things up. with katie porter. porter refuses corporate pac money. and leads the fight to ban congressional stock trading. katie porter. taking on big banks to make housing more affordable. and drug company ceos to stop their price gouging. most politicians just fight each other. while katie porter fights for you. for senate - democrat katie porter. i'm katie porter and i approve this message.
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♪ this is a historic moment for the united states supreme court and for american democracy. the justices about to consider whether donald trump is constitutionally barred from being president again. we'll hear the unprecedented arguments and the court's responses live. welcome to cnn's special live coverage of the trump ballot battle at the u.s. supreme court. i'm kaitlan collins live outside the supreme court. >> and i'm jake tapper. the nation's highest court will review this landmark case. the division by colorado's supreme court to disqualify former president trump from the 2024 ballot based on what some call the insurrectionist ban 12349th amendment to the u.s. constitution. today the nine justices, three of them nominated by trump, are poised to have the most direct impact on a presidential election since the supreme court decided bush v. gore nearly a quarter sentry ago.
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now among the questions before the highest court in the land today, did trump incite an insurrection on january 6 as colorado's courts, including the state supreme court determined he did. does the rarely invoked insurrectionist ban apply to a president, to any president, and if so should trump then be barred from the presidential ballot, in the only in colorado but potentially in states across the country? we're going to begin today at the u.s. supreme court just steps away from the u.s. capitol where that january 6 riot played out. cnn's senior supreme court analyst joan bicuspik is there. >> sure, jake. i'm feet from the side of the supreme court where i'll slip in in a few minutes and be able to hear the hours of arguments in this case, and can you not overstate the weight of this because this case could determine who is the next
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president of the united states. what it will come down to is donald trump going to remain on the colorado ballot and on ballots across the country which will determine who our next president will be likely? so what will i be watching for when i get to cross the threshold. two issues, the justices are taking on a wide array of questions as you and kaitlan just laid them out and they start with a particular question presented. they didn't this time. they opened it all up, so we're going have to hear for the first time where did they put their focus? if they put their focus on discreet words like officer of the united states or hold or versus running for office, they will know they won't get into whether or not donald trump engaged in an insurrection. if they go narrowly towards the discreet issues, this would favor donald trump. if they start asking more questions about january 6, more
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questions about what constitutes an insurrection under section 3 of the 14th amendment, that will favor the colorado voters because the lawyer for colorado jason murray is really going to try to keep the focus on this. i'll be watching also chief justice john roberts, the center of the bench, the strategic center works will probably try to steer his colleagues towards some potential options and we'll know whether he has any takers by the questions we hear from his colleagues. jake. >> joan, thank you so much. let's go over to cnn's legal analyst elie honig. walk us through how this case ended up before the u.s. supreme court. >> always a good idea to start with the constitution itself. 14th amendment, ratified in 1868 shortly after the civil war. the main idea was to prevent confederates from taking office. now -- >> because they had committed treason. >> exactly. >> the key language in that amendment tells us no person that will should any office who shall have engaged in insurrection or rebellion. by the way, that is in section 3. you'll hear the parties talking a lot today about section 3.
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this is what they are talking about, engage in inrex. now the next 150 years or so, this 14th amendment was almost never used until about a year ago when we started to see a bunch of challenges to donald trump's candidacy. none of them succeeded until colorado which back in december ruled in a 4-3 decision from the colorado state supreme court that, yes, trump did commit insurrection and he is, therefore, disqualified from the ballot. trump's team then appealed to the supreme court, and they promptly issued what we call certiorari meaning we will take the case. the briefs are in and we're 56 minutes away from an historic target. okay. what legal arguments and legal issues do you expect that we'll hear today from the justices? what will they be focusing on when they grill the attorneys? >> so three big issues i think we should watch form. first of all, did donald trump engage in insurrection? i actually do not think, as joan said, the justices will focus much on this, of course.
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colorado found that he did. trump maintains he did not, but that's a fact issue, jake. the supreme court is not a trial court. they don't usually make factual determinations. instead, i expect them to be looking at the specific legal issues. first of all, who decides whether and how the 14'd amendment pay place? is it congress as donald trump will argue it has to be congress, or is it up to the states, and then the third main issue that i think we'll see is does the president even count under the 14th amendment? the 14th amendment does not specifically list the president, but it does say that it applies to a, quote, officer of the united states, so we'll hear a lot of back and forth whether the president counts as a, quote, officer of the united states. those are three big issues to watch for. >> elie honig, thanks so much. so let's talk about this with my panel. laura coates, what's the number one thing you'll be looking for today? >> i want to know if the court gets to the heart phrase engaged in insurrection.
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they are not a fact-finding court but underlying everything in the room it's did he create inans rex to see whether it's relevant to apply this insurrection ban against him. if the court tries to wade into the waters of whether he engaged in insurrection, that would be a very telling moment in american history. you already have a colorado supreme court and a colorado district court talking about this. you had an impeachment pros bez this very thing, but you don't have a criminal charge against trump for inrex. you don't have -- for the cases that jack smith is right now, part of it and the impeachment against him did not result in a conviction so i'll be curious to see if the supreme court of the united states wants to wade into this. >> steve? >> yeah, oral arguments in the supreme court, jake, are so often about the justices talking to each other and talking to each other through the advocates, talking to each other through the questions they are asking. in addition to what laura says, to what elie said, i'm interested in how do the justices from across the ideological spectrum actually communicate with each other during the oral target?
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do we see justice kagan trying to pick up on questions asked by jeff justice roberts or kavanaugh? do we see justice gorsuch ping on questions asked by george sotomayor. if the court is going to find a consensus way through the question it seems like argument will be a fascinating preview in how the justices reccoing each other, enforcing or, jake, not as case may be. >> george, i agree with that, and i agree with everything that i've just heard. i think the -- i do wonder how much they are going to get into the engaged in an insurrection argument because there are legal off ramps and as elie said the legal issues are primarily what this court decides, but here the legal off ramps aren't particularly strong. they -- the argument that the president isn't an officer of the united states is not particularly strong nor is the argument that the 14th amendment cannot be enforced without a act of congress, and so i think the court may find itself in the uncomfortable position of
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focusing on the words engage in an insurrection. i don't think there's any question that there is an insurrection because an insurrection is basically any use of force against the government to prevent it from exercising its authority or doing its birks but question is what does it take to engage? is incitement engagement? did donald trump incite? these are questions they don't really want to complete because they are factual, but at the end of the day this may be how the case is decided. >> let's just dal it as it is though, jamie, if we can for a second. i find it impossible to imagine that this court, this conservative court with three justices that donald trump appointed. >> right. >> ruling in any way that keeps him off the ballot. >> so i -- as the non-lawyer on the panel, let me just say. >> you're not the only non-lawyer. there are a few of us. >> to quote our colleague marshal cohen he wrote a piece and the lead are a lot of smart people predicted this day would never come, so just starting with that we are here.
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this is sort of the little engine that could, that it is just grown and grown and grown. that said, when i've spoken to legal experts, to some judges, to some former judges who are very familiar with this court and who believe in this case, they will still say this is a court looking for an off ramp. >> right. >> and i don't think that's just the conservative judges. >> i agree, that george, because big picture here, this is arguably -- i mean, it's one of the, set the civil war aside, this is one of the most divided times in our country's history. the supreme court is going to anger about half the country regardless of how they decide this, but when i talk to democrats who are very much afraid of donald trump becoming president again, afraid of what he could do to our democracy, a lot of the really smart ones are honestly afraid that the court -- they would be afraid of the court taking him off the ballot because of the addition
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to the division that that would create, the number of people who would feel and, you know, i think there's some concern that it might be more legitimate if this outside institution denies them opportunity to vote for the guy that clearly republicans are about to nominate. it's very trick thing. you know, i will say to the lawyers here, i get that we're in weighty legal questions here. the supreme court is a political actor. you can't deny that. >> one of the questions is, one of the most famous interventions by a supreme court in a case like this was the watergate tapes case in 1974 where i think it was so critical that the court was able to speak with one voice. you had conservative appointees of president nixon who was the person at issue in that case. you had, you know, the lions of the liberal warren court, and they found a way to reach a unanimous decision which was so important to have it being accepted by both halves of the country. president nixon himself, some question he might defy a decision that w5s-3 with one
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justice recused. part of what's going on, the reason we're fixated on the coalitions, is there a possibility of consensus because i think casey is exactly right. a 5-4 ruling here is not going to help anybody, but is there some way, do we get some clue from today's oral argument that maybe there's some kind of compromise, much like the court reached in the watergate tapes that get the court all together. >> i'm looking for the clues and i'll be listening in. which is why i would love to have a camera in the courtroom to get a cent. what we do have is the audio and that's so important. what i'm listening for specifically as well though is this is about colorado, that's true, but you know there are 50 states who are leaning in to figure fought this court says they can take him off the ballot, well, there's a lot of hands that are going to raise all of a sunday and use plaintiff actions to get him off the ballot. they don't want a patchwork. they want clarity about what other states can do, if they
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rule he's disqualified the floodgates have opened. >> as we head to the beginning of the momentous supreme court hearing, a look what the president trump is saying and doing with the fate of his white house campaign on the line here in washington, d.c. there's so much more of our special coverage ahead.
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states supreme court as the justices are preparing to hear the landmark challenge to donald trump's eligibility to appear on the 2024 presidential ballot. we'll bring you the extraordinary oral arguments live. former president trump is staying away from the u.s. supreme court today, quite uncharacteristically. he's at mar-a-lago instead and cnn's kristen holmes joins us from west palm beach, florida. a very enviable shot that i'm looking at right now, kristen. we've already heard from former president trump though today, huh?
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>> yeah, that's right. so he's staying away from the supreme court, but he's not staying quiet which isn't that surprising. we are expected to hear remarks from him later today before he heads to nevada for the caucuses there. he's expected to win so another juxtaposition between this legal and political side, but he's done a series of interviews essentially saying that the justices have a powerful decision to make and unsurprisingly alluding to the fact that this is election interference. >> they want to have, you know, the supreme court rule or vote to take me out of the race. that would be a very terrible thing to do. it's about the vote. it's about our constitution. you can't take the votes away from the people. that would be so bad for democracy. that would be so bad for our country, and i can't imagine that that would happen. >> jake, as you said, it's very notable that he's not attending these arguments. he has really used the courtroom, particularly in new york, we saw the defamation case
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of e. jean carroll as well as the civil fraud case as campaign events and opportunities to cry political persecution, but we're told his team decided for him not to attend in part because they are taking this more seriously. they are taking a different approach to that. we'll wait and see how donald trump reacts when he gives remarks later today. >> the former president sounded a bit congested. is he battling a cold? >> i've not heard that he's battling a cold. still planning on all of his travel and going to nevada so we'll see how that goes. >> all right. kristen holmes, thanks so much. let bring in my colleague kaitlan collins anchoring outside the u.s. supreme court. >> yeah, as we're waiting for the arguments to get under way. we're looking what the they will look like and who will be making the arguments. we have paula reed with me outside the supreme court. two of the twhoerns will be there on different sides making this argument, they are very familiar with the u.s. supreme court because each of them have clerked here for justices in the
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past. jason murray has clerked for not only neal gores such and elana kagan and jonathan mitchell was clerk of scalia's i believe. >> let's start with john than mitchell arguing on trump's behalf. a former texas solicitor general. this will be his sixth argument before the supreme court. he's quite a contrast to a lot of the other lawyers we've seen represent the former president recently. this is a guy who spent most of his career in government, in academia, he writes scholarly articles on the 14th amendment and texturalism, central casting for who you would want to be advocating for you before the justices but a little bit differently than what we've seen with trump's representatives. now arguing for the voters who brought this case will be jason murray. this will be his supreme court debut. quite a case to make your debut on. he's only in his late 30s, but he is a very experienced lawyer. like you said, he's clerked for justices on both sides of the aisle. now if he had his way, it would
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just be two lawyers arguing today, but the justices have allotted some time for the solicitor general of colorado to argue on behalf of that state's secretary of state. shannon stevenson will also be arguing. this is the way they will difficult up the time. jonathan mitchell will get 40 minutes and jason murray 30 minutes and stevenson will get ten. as we know, these justices, they have lifetime appointments and no box they do what they want. this could go on for hours. >> it's the supreme court. what's so interesting about jonathan mitchell he's not a household name but he is also the attorney who underwrote that opinion essentially arguing that when the texas abortion law, that you could go and others could be held accountable for that so he is well known. on the timing here and what this looks like, we've also will be hearing from these attorneys inside that root one person who is not in there is donald trump, as kristen was just noting. we've been at so many court appearances where donald trump has been there. what have you heard about why
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he's not showing up today? >> we actually broke the news that he was not going to show up, and in reporting this out it was interesting to hear about the behind-the-scenes discussion. it appears that there has been some recognition that this strategy that we've seen, been at all the court hearings where he showed up. he brought the campaign to two civil cases in new york, even to the d.c. district court here for an appellate argument bringing the campaign, bringing the circus to these arguments has not necessarily had the benefit that they anticipated. now there's also the fact that this is different. this is the supreme court though i will note that the d.c. circuit is one rung down and he still showed up for those arguments. he understands the sources tells me that the stakes are high. there's no upside for him showing up today but it's part of this overall approach that we're seeing here, it's more traditional and disciplined. you have an experienced lawyer going up to advocate for your case. for two days now he's been engaged with mock arguments with other trump advisers. it's clear they are taking this
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seriously, and in my conversations with the team, they are confident that they don't need the circus or chaos. they are confident they will win on the merits. >> and we'll continue to follow this as we're listening to them live. jake, that's such a notable part of this is they are confident that they are going to win on the merits here. i will say the trump team itself is surprise that had this case has even been elevated to the supreme court, that it has gone from where it was, these plaintiffs who brought this to the fact that it's been elevated to the building sitting behind me. >> thanks so much. still ahead, we'll dig into the constitutional questions before the u.s. supreme court as we stand by for the trump ballot battle to get under way. i'll talk to two legal scholars including a prominent conservative who believes in a the 1th amendment does qualify donald trump for appearing on ballots to return to the white house. stay with us.
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♪ welcome back. we're closing in on a ground breaking hearing at the u.s. supreme court on an urgent constitutional question, does the 14th amendment's insurrectionist ban disqualify donald trump from running for and serving as president again? well, let's try to get some insights from two legal scholars, jay michael ludig is a retired judge and conservative arguing that trump is disqualified from returning to office because of this amendment to the u.s. constitution. also with us, jeffrey rosen, a professor at george washington university law school and president and ceo of the national constitution center. thanks so much to both of you for joining us. let's start by reading what we're all talking about here, the 14'd aptment to the u.s. constitution which says, quote,
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no person shall be a senator or representative in congress or elector of president or vice president or hold any of course, civil or military, under the united states or under any state who having previously taken an oath as a member of congress or as an osser of the united states or as a member of any state legislator or executive or judicial office other of any state to support the constitution of the united states, shall have engaged in insurrection or rebellion against the same or given aid or comfort to the enemies thereof. but congress made by a vote of two-thirds of each house remove such disability. judge lidig, you sparked much of this whole debate when you co-wrote the op-ed with liberal scholar larry tribe saying the 14'd amendment automatically excludes trump from the presidency. why do you think that the case, and why should justices take such a dramatic took disqualify the man who will likely be the
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republican presidential nominee? >> thank you, jake, for having jeff and i on this morning. this is an historic case, both constitutionally and politically. perhaps the most historic constitutional and political case in all of american history. section 3 of the 14th amendment is the safety net, the constitution's safety net for american democracy. it is as if the framers of the 14th amendment foresaw january 6, 2021, and they provided in section 3 for america that it would never witness again another january 6. the section 3 is -- disqualifies one quintessentially for the
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kind of insurrection against the constitution of the united states that the former president engaged in in particular. when he attempted to remain in power beyond his constitutionally prescribed four-year term and attempted thereby also to deny president joe biden the powers of the presidency to which he was lawfully entitled because he had been elected by the american people, all preventing the peaceful transfer of power for the first time in american history, the former president engaged in the quintessential insurrection against the constitution of the united states that section 3 contemplates. so the question is not so much whether the former president
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engaged in or -- an insurrection against the united states or the authority of the united states but rather did he engage in an insurrection against the constitution of the united states? the disqualification clause, jake, is not anti-democratic as so many people have said. rather, the constitution itself tells us that the anti-democratic behavior is the conduct that gives rise to disqualification, in this instance an insurrection against the constitution of the united states. >> jeffrey, a lot of people expect that the justices on the u.s. supreme court will be looking for an off ramp to try to avoid this question entirely. for example, saying that congress needs to ask first or arguing that the president isn't included under the 14th amendment because he isn't
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expressly mentioned. in your view is there a way to do that? >> as you say, there are off ramps, and you mentioned two of them the first one is that the justices might hold that the president of the united states is not an officer of the united states under section 3. the second off ramp is they might hold that congress has to enforce section 3 that states and courts can't enforce it on their own. the third they might hold that january 6 was not an insurrection or they can say that president trump did not engage in it, that his speech was somehow protected under the first amendment. it's such a complicated mix of constitutional pragmatic and political considerations. bush v. gore ended up being decided on grounds completely different than the ones originally argued on, so literally anything can happen. as viewers listen to these historic arguments today, listen
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to all those off ramps and see which justices are interested in which arguments in particular, and we'll see at the end of this morning whether any consensus seems to be converging or whether we'll just have to wait until the court's decision. >> judge luttig, as a judge yourself you have embraced textualism and originalism, a philosophy that you share with several of the conservative justices on the supreme court. is there a way to be a texturalist and an originalist and still find that donald trump is eligible to be on the ballot in 2024? >> i do not believe there is, jake. the original comprehensive study of section 3 of the 14th amendment was done by two conservative professors. prove sews bode and michael paulson. that comprehensive study and
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research was done under originalism theories interpretation of the constitution, and those two professors concluded that under an originalist interpretation of section 3 of the 14th amendment the former president is disqualified. now i would hasten to add that even if one were not to interpret the constitution as an originalist, then as a texturalist only, it's also pristine clear that the former president is disqualified under section 3 for having engaged in the insurrection against the constitution of the united states. >> all right. thanks to both of you. appreciate your time and expertise. coming up, the huge political stakes for donald trump and for joe biden for that matter as we count town to the start of this historic u.s. supreme court hearing on efforts to disqualify donald trump from
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the ballots. we'll be right back.
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we're awaiting the start of the u.s. supreme court hearing, a momentous one, one that could impact a presidential election, one we've not seen since bush v. gore. right now it's donald trump's candidacy on the line. you'll hear the oral arguments in real time coming up minutes from now. president biden has an obvious stake in what happens at the u.s. supreme court today, so let's check in at the white house with arlette saenz. how do president biden and his team view this challenge in
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court? >> he recently told reporters he's fine with former president donald trump staying on the ballot. in the end the president believes this is a decision that will be made by the court system, but what we've seen from the white house and this campaign is really them adopting this stay silent strategy. they tried to avoid commenting on the legal issues facing the former president for fear of giving any perception of political interference, but what the campaign is focused on today is charging ahead with their plans to take on trump in the general election. we have heard from president biden this week trying to really turn this race into a referendum on trump, painting him as the one existential threat facing the country. the president has also leaned in to highlighting the republican dysfunction on capitol hill to highlight the way that the party still has a strict adherence to trump's will, and the president, of course, will be keeping tabs on this as it's unfolding today, but for the most part the team has steered clear of trying to
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weigh in on these issues due to trying to avoid any appearance of political interference. >> all right. arlette saenz at the white house for, appreciate it. let's talk more about the stakes for the 2024 election, first with some political commentators and then we'll talk to lawyers. we'll start with the political commentators. cnn's van jones and scott jennings. van, let me start with you. the biggest case before the supreme court, u.s. supreme court since bush v. gore in 2000. who is at take politically? >> i think beyond joe biden and donald trump, what's at stake is the validity of our constitutional system. people all morning have been banging my head against the table talking about democracy. we have a constitutional democracy because the framers recognized that crazy people can be popular. bad people can be popular, so our constitution says certain people can't serve. people love aoc in my party. she's 34 years old. no matter how much the democracy wants her to be president, she's too young. people love harry styles.
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people love palm mccartney. people love arnold schwarzenegger. they are popular, but the constitution says they are not natural born citizens. you can not be president, and the framers of these amendments understood traitors can be popular. people who took an oath and threw it in the garbage can can be popular but you can't be president, so we're -- we're facing a situation now where a big part of our constitution could become a dead letter because people are afraid to put -- to do what the constitution says which is to say this guy is no longer eligible, and so the politics now, not just for a biden or a trump but for the ability of this country is on the line today. >> scott, what does it mean for the republican party if the u.s. supreme court were to rule that, no, trump is not eligible to be on the ballot? >> well, i mean, it would be like the end of the original "ghostbusters" movie but in every state capitol and county clerk's office in america. i think the republican party would candidly ignore it. i think they would try to nominate him anyway and i think
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republican-run states would try to put him on the ballot anywhere and there would be massive write-in campaigns to elect him anywhere in places where he wasn't on the ballot and i don't have to tell you what kind of crisis that would create in terms of counting votes and sending up electors and so on and so forth so the political reality is taking him off the ballot would cause a meltdown in this country that it would be hard for us to even describe what would occur in the aftermath. i don't think they are going to do that, but i don't think the republicans are interested in the supreme court telling them who they can and can't nominate, and i think a crisis would frankly ensue at the highest levels of this party. >> appreciate the relevant pop culture reference with the first "ghostbusters" movie as if we weren't dating ourselves with the bush v. gore references. van, trump's legal team in a brief filed on monday said, quote, he is the presumptive republican nominee and the leading candidate for president of the united states. the american people, not courts or election officials, should choose the next president of the
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united states, unquote. so trump's team is arguing there that democracy depends on him being on the ballot so the american people can make the decision, not judges. what's your response to that? >> well, that's what i was trying to talk about. we have a constitutional democracy. certain people are not eligible to be president of the they are too young and weren't born here. they are traitors and that's really at the stake and by the way. can we be honest here. if barack obama had sent 10,000 black lives matter protesters to destroy a session -- a joint session of congress, he wouldn't be in jail, he'd be at guantanamo and nobody would be talking about him being president n.rashanda tlaib sent 10,000 muslims to interrupt a joint session of quantity she would be in quantity mow and nobody would blink to saying she's not qualified to be president. there's something crazy going on when we act like something that happened didn't happen and has no relevance today. if there's ever been a president
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that took the ost office and threw it in the garbage can it was donald trump and that insurrection. if you're a constitutional conservative, then show it today and stick up for the constitution. >> all right. scott, you want to get -- you want to react to that? >> well, he wasn't charged with inrex. at the end of the day the fact that jack smith who investigated this did not charge him with insurrection to me has always been the strongest argument about why they shouldn't throw him off the ballot because of insurrection. >> all right. appreciate it. thanks so much, van and scott. now to two opposing views on the legal merits of the trump ballot ban, conservative lawyer george conway is back with us along with jim schultz, a former associate and white house counsel under president trump. jim, let me start with you. what do you think is trump's strongest argument today on why he should not be disqualified? >> there will be three arguments that will be made that i think that one is straight up that -- that he is -- he does not -- doesn't apply to the president of the united states, the argument there being that there are certain folks that are enumerated, and even when they were debating this, when this was passed, they actually had
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president and vice president in the legislation and they took it out, and typically when you -- when legislation is passed like this and you enumerate certain offices, the top office holder is first. here they started with the senate and went to the house and went to the presidential electors and went to the state officials. they walked all the way down the line and then -- and they used a catch-all phrase in between. the question is does the president fit into the catch-all phrase and the argument is no, he doesn't. he doesn't fit into that catch-all phrase. i think you'll hear that today number one. >> let just break this down to make it easily digestible for our viewers. let's come back to you. respond to that, if you would. >> well, the answer is there's a lot of history that shows that people understood the president of the united states to be an officer of the united states and especially around the time of reconstruction, and the answer to the question of why do you take out president and vice president you take it out because it's unnecessary because they are both officers of the united states so once you've got them covered by officers it doesn't matter, and then you
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have people -- when they refer to members of congress, that's a little different because they are not considered to be officers of the united states, so there's a perfectly good reason. in fact, there's also a -- there's a discussion i think on the floor of one of the houses of congress about, well, doesn't this apply to the president and the answer is oh, yes, it does. he's an officer of the united states, and it would be really, really bizarre to apply this provision to everybody except the person charged with executing the laws. >> okay. >> point two. >> point two, it's going to be whether this needs to be -- this is a self-executing document. interesting to hear from van jones about the 35 years old, the qualifications. that's self-executing. there's an argument this is not self-executing, what you'll hear from the trump team there. has to be some other act of congress. the argument will be that, yes, congress acted. they passed the insurrection act, and when they passed the insurrection act that directly applies here. here the president wasn't channelled with insurrection. jack smith had an opportunity to do it. he didn't do it, and -- and in this case so now you leave it up
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to the state courts or state officials or partisan officials to willy-nilly make that determination? this isn't just about donald trump. they are going to argue that this is more about, okay, could, for instance, the border crisis, right joe biden isn't sufficiently supporting the border crisis. you have a republican governor in texas who says, you know, we want -- their officials are going to strike joe biden from the ballot because they are allowing, and this is not out of the ordinary, you have a governor in texas who could make -- who would make this argument giving kind of the stances that he's taken on the border, that joe biden is allowing for some type of invasion into the united states, and, you know, bill barr made that argument in his brief that this just kind of opens up the door for will nilly for state officials to be able to make these determinations without having, you know, a federal case brought or a criminal case brought where the defendant faces charges. >> and the answer to that is that congress could have said that -- that the constitution
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could have said, section 3 of the 14th amendment could have said that congress needs to enact legislation. instead, it only says in section 5 of the 14th amendment that congress may enact legislation, and that applies to all the provisions of the section -- of the 14th amendment, including section 1 which contains the equal protection clause which prohibits race discrimination, so if the argument that the provisions of section -- of the 14th amendment were -- were not self-executing, that would mean congress could repeal the civil rights acts tomorrow and states could engage in discrimination. >> i've got squeeze in this quick break. up next, i'll also talk to the colorado top election official about trump's disquell aification from the state ballot as the u.s. supreme court is set to review the decision just minutes from now. stay with us.
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two leading candidates for senate. two very different visions for california. steve garvey, the leading republican, is too conservative for california. he voted for trump twice and supported republicans for years, including far right conservatives. adam schiff, the leading democrat, defended democracy against trump and the insurrectionists. he helped build affordable housing, lower drug costs, and bring good jobs back home. the choice is clear. i'm adam schiff, and i approve this message.
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growing up, my parents wanted me to become a doctor or an engineer. those are good careers! but i chose a different path. first, as mayor and then in the legislature. i enshrined abortion rights in our california constitution. in the face of trump, i strengthened hate crime laws and lowered the costs for the middle class. now i'm running to bring the fight to congress. you were always stubborn. and on that note, i'm evan low, and i approve this message. at the u.s. supreme court, the gavels will fall, and the justices will be in their robes to rule whether or not donald trump is eligible to be on the ballot under the constitution's
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so-called insurrection ban. under multiple states most of them have been dismissed by the courts themselves which means that donald trump is on the ballots. and maine is the only other state other than colorado who has formally moved to disqualify donald trump, that case is working through the lower courts. and joining us now is colorado secretary of state jana griswold, and she is going to be there at the court for the arguments. thank you for being here. really appreciate it. and i have a note here that donald trump has not been actually charged with insurrection by special counsel jack smith or fauny willis in georgia, because it is a high bar and difficult to prove. what does that tell you and does it complicate this at all? >> well, first of all, thank you for having me on, and that is right, he has not faced criminal charges can, but we don't know
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why the prosecutors have not brought those charges. but i do not think it complicates this court case at the supreme court today, because historically section 3 of the 14th amendment is a civil procedure, so it is not a criminal court case, it's a basic civil procedure, and he has faced trial. he had a five-day hearing in colorado at the district court, and then he also appeared before the colorado supreme court. both of the courts determined that he did engage in insurrection. >> so, that was going to be my next question. five days of trial, and while he had an opportunity to present a defense and all of that, it does not seem that extensive of a trial for such a serious charge. >> well, believe it or not, donald trump didn't even use his full amount of time allotted to him by the court. he was able to call every single witness that he wanted to call.
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he presented all of his testimony, and actually he did not use several hours allotted to him. on top of that, he refused to appear himself, and he refused to take deposition, so i do think that this angle of, oh, he was not afforded due process, that is incorrect. he was. a five-day court trial and months of briefing and different side bar arguments with the court is a sufficient trial. >> okay. for the record, i did not say that he was not afforded due process, because i think that he was, but i don't think that it is an extensive trial for such a serious trial. >> it is an argument that he had raised with the media but not in any court filings, and it is an argument that people are talking about. he did not raise this due process argument with the supreme court, but we will see if the supreme court today asks questions about it. >> so the your state solicitor general is going to face the nine justices on your behalf and
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she has ten minutes before the court, and what is the key argument? >> as secretary of state, it is really important to protect our election law in colorado. the key argument is that it is okay for a state to determine to keep ineligible candidates off of the ballot. so just like we would not put schwarzenegger on the ballot, because he is not a natural-born citizen, we can determine to keep off of the ballot a disqualified insurrectionist. >> you filed amicus brief to keep trump off of the ballot guaranteeing that votes are not wasted on ineligible candidates, your language, and thousands have voted for him in the caucus process, and what do you say to thousands of americans who say that their votes and not judge's decisions should decide who the next president is? >> well, to clarify, we did not file an amicus, but myself and
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the state of colorado is party, and so it is in one of the briefs to supreme court. honestly, in colorado, we believe that having disqualified candidates on the ballot can cause confusion. if someone votes for a candidate who can never be seated in office, that is suppressive in itself. again, referring to system of trump's own arguments, he wants to say, oh, this is election interference. what was election interference is his attempts to steal the 2020 election from the american people. remember, we are only here, and trump is only facing this lawsuit, because he incited the insurrection in his multi faceted attempt to steal the presidency. >> last question, a group of republican secretaries of state urge the supreme court to rule against the colorado supreme court to say that if the secretaries of state and partisan individuals obtuse the
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section 3, there are obvious safeguards, and i have to admit that i am sympathetic to the argument, because i have seen in washington that any time a norm is shattered or, or something new like this happens, it goes on to be abused, whether it is the filibuster or whatever. what do you say to that argument that, i mean, we have heard governor ron desantis saying that joe biden should be kept off of the ballot because of what is going on at the bord ser a rebellion or insurrection? >> i don't think that saying that one party is going to act poorly is a reason to uphold the law or the constitution, and we do have safeguards, and it is the legal system. in colorado, i did not make the decision, and this was brought by unaffiliated voters who did not want a disqualified candidate and the ballot. he has had two trials to this
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point, two trials in the colorado district and supreme court, and now indicating that the republicans are going to act bad is not a reason to uphold the constitution. >> thank you, jena griswold, colorado secretary of state, thank you for being here. >> sure. i appreciate it. the u.s. supreme court is about to take up one of the most politically-charged cases in history and one that could end donald trump's presidential campaign in minutes. and arguments to hear whether his actions on january 6th, 2021 disqualify him from ever holding office again. and again, we will bring you every word of the arguments live. this is cnn's special coverage of the ballot battle. i'm jake tapper, and we will bring you clues as to where the justices are standing as we bring you the unprecedented decision of the colorado supreme
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court last december that found that trump in their view is ineligible to appear on the state ballot. the court finding that trump violated the insurrection ban of the amendments of the u.s. constitution. kaitlan collins is outside of the supreme court. >> yes, jake, we are looking at who is going inside of the courtroom, and we are looking at the attorneys who are going to be arguing, and paula reid, as we are seeing who is going in to represent donald trump, and those making the arguments and those familiar with the supreme court, and many of them clerks for the justices previously, but also on trump's team, we have a bit of the idea who he has dispatched to go in there and he, himself, won't be in there and boris snide, and john sauers, and that stuck out to me, because he is the attorney
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who just made that argument about trump having presidential immunity in front of the federal appeals court in a different courthouse here in washington, and what is he watching for and listening for from the justices? >> he is thinking of his own appeal that he is going to have to likely make to justices, because a couple of days ago he learned that he lost that case before the district court here in washington, and the district court gave the trump team until monday to tell the high court if they intend to appeal. we do expect they will appeal to the supreme court, and possibly to ask the full circuit to hear the case, but it is notable that the supreme court is such an enormous influence of the 2020 election cycle, because as soon as they get out of court today, the trump legal team has to go to talk about this immunity appeal. >> they have a monday deadline. >> yes, they have to state to court what they will do and we expect they will appeal, and then what are the justices going to do with this case.
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the sources around the trump legal team say, it is not a strong case for them, and they are confident about the ballot eligibility case on the merits, but they are not sure they have absolute immunity is something they could win on here at the high court. they lost at the trial court and the district court, but the legal strategy is just to delay, delay as long as possible, because if they do lose, that means that jack smith can bring his election subversion case to trial. so they will try anything they can to delay that outcome, but the big question is what are the justices going to do with this anticipated appeal and unclear if they will take up the case, and be back here for another trump issue, but the legal team has a lot of work to do and john sauer is in there to see if he is going to win on the merits and if for no other reason to draw it out longer, and get the federal trial pushed past the
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november election. >> and of course, the political aides to go back to report to trump, and paula, stay with us, as we continue to watch this as the trump team is watching to see how bigf a role the supreme court is going to play in their campaign and going forward what it truly looks like. >> true. and we won't get any warning when the oral arguments begin, so i will rudely interrupt who is talking at the time, and so, those at home don't think me rude. >> in advance. >> and elie, there is another case about donald trump that is working through the system, and that is whether or not he is going to be getting immunity for the actions that he took when he was president and i asked if it is possible that the united states supreme court is going to refuse to take up the case, because he has been found by a lower court that he does not have immunity, and possible on the same day that they will find
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in his favor on the case today and he is kept on the ballots, and the same time the court says, but we won't hear this other case, meaning that he is not immune from prosecution, and therefore kind of splitting difference, and that seems to me basedn my limited knowledge of the supreme court chief justice, and the chief justice john roberts something that he would like to do, because he is even-handed kind of guy. >> it is absolutely possibility. the supreme court can issue the ruling whenever it wants to do, and if they want to coordinate the rules, they can do that. and the bigger picture, it is shaping up to be justice john roberts' nightmare year. just as joan biskupic has said, he does not want to be the one where the justices split, the liberals, ans and others. and whether or not donald trump
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can claim immunity in jack smith's criminal case, and whether or not they inevitably take them, they will impact the 2024 election, and one thing that i am looking for today is whether the chief is going to start building some middle ground or consensus. >> this is such an important moment, because the two cases that you are addressing, one involving immunity which is an extraordinary case to talk about and that is going to the checks and balances and the core of the democracy, and checks and balances, and that is one that the court would want to weigh n because it does not have politics, but the other one, can trump be on the ballot, and from the average voter, they say, isn't that inherently political, and i am having a little bit of ptsd from bush v. gore, even though it is valid of this court the address. we will be cognizant of that, and they want to have the off-ramps, but at some point when the push comes to shove,
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you will have to decide the issues whether or not it is comfortable, and this is what the nine justices are for. >> jake, the real question is how does court view the legacy coming out of this, and not just the disqualification, but the immunity case, and how does the court speak in a voice that is going to persuade the people who are not convinced, and persuade the institution at this point in history to bring people together, whether it is ballot disqualification and immunity, and this is how interesting they fit together, and could the court hand down a mixed verdict? >> it is going to be easier to come together in the immunity case, because it is relatively simple, and they could and not hear the case, but in this case, it is harder, because are you trying to avoid what the 14th amendment actually says is the question, and if they are, they
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won't have good pickings to choose from as legal method out, and if they go down the route of whether or not donald trump engaged in insurrection, that is precarious one, too, because they normally don't get into that factual determination. >> they could -- excuse me -- they could punt on this, and looking at the thingsn their plate, and they could point to congress, and say, wait a minute. you have to produce a civil action, and you have the right as congress said, you can enforce the rights existing, and those are 1983 cases, and they don't have a singular cause of action or way to sue under section iii and without that, the court could say, we don't hear that traditionally. >> i don't buy that one, because the 14th amendment, and section 1 of the 14th amendment, as i said, the race discrimination, you can assume to enjoin a
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school district from engaging a race discrimination whether or not congress has enacted a statute. >> but one of the questions going into the court today, is the court trying to speak to the lawyers or the american people, and some of the most important decisions were written deliberately to be to non-lawyers and brown v. board of education, and judge brown wrote the opinion in a way that can be printed in newspapers. >> okay. we will listen in. mr. mitchell. >> mr. chief justice and may it please the court. the colorado supreme court held that president donald j. trump is constitution ally disqualified to serve as president under the section iii of the 14th amendment, and he should be dismissed under numerous reasons. the first reason is that president trump is not covered under section iii because the president is not an officer of the united states as that term
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is used throughout the constitution. officer of the united states refers only to appointed officials, and it does not encompass elected officials such as president or members of congress. this is clear from the commission's clause, the impeachment clause and officers clause and this refers to appointed and not elected official. the second reason is that section iii cannot be used to exclude a presidential candidate from the ballot even if that candidate is disqualified from serving as president under section iii because congress can lift that disability after the candidate is elected but before he takes office. a state cannot exclude any candidate from federal office on account of section iii and any state that does so is violating the holding of term limits by
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altering the qualifications for federal office. the colorado supreme court decision is no different from the state residency law that requires the members of congress to inhabit the state prior to election day when the constitution requires only members of congress inhabit the state they represent when elected. in both situation, the state is accelerating the deadline to meet a constitutionally imposed definition of term limits. and any ruling from this court would not only violate term limits, but take away the vote of tens of the millions of americans. i welcome the court's questions. >> mr. mitchell, you didn't spend much time on your argument with respect to whether or not section iii is self-executing. so, would you address that, and in doing that, your argument is
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that it is not self-executing, but then in that case, what would the role of the state be, or is that entirely up to congress to implement the disqualification in section iii? >> it is entirely up to congress, justice thomas, and the argument is going beyond section iii because a self-executing definition goes beyond the griffin's act by going beyond that saying that it is self-executing unless and until congress implements a case. and the litigants disagree with us on that point, but if you were to adhere to griffins case, there is no withholding of the
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case under section iii unless there is an action that gives them that authority. >> counsel, what if somebody came into the secretary of state's office and said, i took the oath specified in section iii, and i participated in the insur reck insur insurrection, and i want to be on the ballot, does the secretary of state have the authority in that way to say no? >> no, it has to be consistent with the candidate, because if they are an admitted insurrection, they can run for office and be elected to office, and see if congress lifts that disability to office, and this happened when confederate insurrectionists were elected to office and obtained a waiver, and then the house voted whether or not to allow that
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insurrectionist to hold office, so even if you banned an insurrectionist to the ballot, it would be adding to the qualifications for office, because under section iii the candidate only need to qualify in the time that the candidate hold the office under which he is holding office, and that the candidate obtain a waiver from congress earlier than the candidate needs to obtain the waiver. >> even though it is unlikely or at least difficult for an individual who says, you know, i am an insurrectionist, and i have taken on the oath, that would require 2/3 vote in congress? >> right. >> that is pretty unlikely scenario. >> it is maybe unlikely, but no secretary of state is to predict the unlikely of the waiver, because in doing so, they are adding a new qualification for the ability to run for congress, and the proper analogy is the state residency laws. the constitution says that a
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member of congress must inhabit the state he represents when elected, and the lower courts have held a alliance on term limits, and the state elections cannot be moved earlier for the person to inhabit that state. >> so if somebody says, i'm, comes into the secretary of state and says, i'm a resident of indiana and i have been all of my life, and i want to run for office in illinois, the secretary of state can't say no, you can't. >> the question is if that person is going to inhabit the state when the election is held. so, if the candidate makes clear, perhaps through a sworn declaration or through his own sworn statements that he has no intention of relocating to that state before election day, then the secretary of state would be enforcing a extant qualification, and that is the
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key, is the state altering in any way the criteria for a federal office either for congress or the presidency. in this situation, the colorado supreme court is going slightly beyond what section iii require, because section iii on the face bans an insurrection from holding law. >> counsel, may i stop you and back up a moment. you admitted that the concept of self-executing does generally permit states to provide a cause of action for breaches of a constitutional provision. >> correct. >> in fact, they do it frequently for takings clauses, but here, there is no debate that colorado has placed that, or provided that cause of action. you want to go a step further and say that this is like a treaty clause to implement legislation to permit the state to disqualify an insurrectionist
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under iii? >> that is right. >> history proves a lot the me and my colleagues generally, there is a whole lot of examples of the states relying on section iii to disqualify insurrectionists for state offices, and you're basically telling us that you want us to go two steps further. you want -- maybe three. you want us to say that self-execution is not generally what it means, and you want us to now say that it means that congress must permit states or require states to stop insurrectionists from taking state office, and so this is a complete preemption that is very rare, isn't it? >> the only thing -- >> it is rare under 14th amendment. >> of course it is rare. this is a one-off situation, and your honor -- >> well, it is one-off, i don't disagree with you, but it is not with respect to how we have
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defined self-executing. >> we are not asking the court to change the definition of self-executing. >> you are not, because it is not. >> right and griffin. >> so the question is different in my mind. i understand that you are relying on griffin. but to be clear, griffin was not a preferential supreme court decision, but district court decision. the justice when he becomes a justice writes in the davies' case, that he assumed, that jefferson davies would be ineligible to hold any office particularly the presidency and treated, and this is his words, section iii as executing itself, and not needing any part on congress to give it effect. so you are relying on a nonpresidential case by a justice who later takes back what he said.
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>> but the key point with griffin's case, and why it is important precedent, and despite what your honor said, and it is not a precedent of this court, but griffin provided backdrop of which congress enforced the act of 1870 when it first provided an enforcement mechanism -- >> and it did away with it later. >> it did away with it later -- >> but it has nothing in respect to what the case says. can we get to the issue, and goes back to one that i started with and very briefly. what sense does it say that states can't enforce section iii against their own officials? i think that logically those are two separate issues in my mind. can the states enforce the insurrection clause against their own officeholders or can they enforce it against federal
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officials or can they enforce it against the president? those are three different questions in my mind. >> and the answer to all three of the questions turns on whether this court agrees with the holding of griffin's case. if griffin's case is the proper enunciation of the law, then the state cannot do any of the things that your honor suggested unless congress gives it the authority to do so. >> so a non-presidential decision that relies on policy does not look at the language, does not look at the history, doesn't analyze anything than the disruption that such a suit would bring, and you want us to credit as prejudicial? >> because congress relied on griffin's case when it enacted the enforcement act of 1870 -- >> mr. mitchell, if i can clarify, because this is sounding like the reply brief, and where you are not making a constitutional argument, but a statutory preemption argument,
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and that is what you are doing here? you are not saying that the constitution gives you this rule, it is the kind of to combination of griffin's case plus the way that congress acted after griffin's case? >> yes. >> that gives you the rule? >> yes, that is exactly right, justice kagan, because we have the implementing case, and congress took up griffin's case, and established in 1870 enforcement act and later appealed, but the only legislation that is currently on the books is the insurrection criminal act section 2783, and when congress enforced the 1870 act, the appeal of the revisions in 1848 they were made -- >> please. >> the understanding is that these congress fwresh nal remedies would be inclusive of the rem dirks and so there is not expressively in these s statues, and you don't need them, because of griffin. >> so suppose that we took them
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away, and there were no griffin's case or subsequent congressional enactment, and what do you think that the rule would be? >> without the precedent of griffin's, it would be a much harder case to make, because every other amendment would be made, and what we have argued is that there are practical enactments that there is a rule similar to what justice chase spelled out in griffin, and the policy concerns that he spells out that griffin involved a convicted criminal seeking a writ of habeas corpus, and that the judge that tried the case was under section iii and judge chase realized that he enforced this, it would nullify every action taken not only by this judge, but anyone who is an insurrection or arguably an insurrectionist under iii. >> why do you need those
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inconsequentials? it seems to me, that section iii by its own force preempts the state's ability not necessarily, i think not to enforce section iii against the own officers, but federal officers in a tarbose kind of way. >> you are suggesting a barrier of the state legislating for section iii for federal lawyers and go to mcclung with the state lacked the mandamus form. >> that won't get you out of criminal court. >> chief chase said that it provided backdrop that states had no role in enforcing section iii unless congress gave them that authority through a statute that was passed -- >> well, through the
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arguments -- >> please, go ahead. >> i think that the argument is broader than that, because if we accept your position that disqualifying someone from the ballot is adding a qualification, really the position is that congress can't enact a statute what colorado has done either, because congress would add a qualif qualification, that it cannot do either. >> i don't agree with that, justice barrett, because congress only prevents states from altering the constitutions for the federal office, and it does not purport to restrain congress. so if congress were to enact implementing legislation to authorize the states from exclusion of the ballot, that would be ballot enforcement with the constitutionality. >> well, why is that permissible, because section iii is the holding of office and not the running of office. so if a state or congress were
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to go further and say that you can't run for the office, you can't compete in a primary, wouldn't that be adding an additional qualification for serving for president that you must have been free of this disqualification at an earlier point of time than section iii specifies? >> the answer to the question, justice alito is how you interpret force, and some justices such as scalia said that force can be nothing more than enacting legislation that mirrors the self-enforcing merits of the case. >> and we would get into congruent and proportional parts of the case. >> and what you apply is misnomer, and often when we use the term, it refers to the
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proposition that a particular provision of the constitution or statue in particular is a right of action and that is not the issue here. >> it is not a issue here, and the self-executing is used in that way, but it is different with self-executing treatise or nonexecuting treatise, and if that is going to have a effect of the law. >> but sometimes this term is used in different terms other than directly used here and that is who can enforce section iii with respect to the presidential candidate. the consequences of what the colorado supreme court did, some people claim, would be quite severe. would it is not permit, would it is not lead to the possibility that other states would say using choice of law rules, and the rules on collateral estoppel
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that there is nonmutual collateral estoppel against president trump, and so the state of colorado could effectively decide this question for many other states, and perhaps all other states, and could it is not lead to that consequence? >> i don't think so, because colorado law does not recognize nonmutual collateral estoppel, and i believe the conclusion would be the colorado law and not the law of other states, but the question, justice alito, gives rise to concern, because if it does not have conclusive pursuit of other remedy, it would lead rise to other factual findings of other it is as, and it could be entered by other state trial judges and that president trump did not have any reason to engage in incitement, and different findings from what this trial judge found. >> so in this decision, trial
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court in colorado thought that it was proper to admit the january 6 report, and it also admitted the testimony of the expert who testified about the meaning of certain words and phrases to people who communicate with and among extremists, right. another state court could reach an opposite conclusion on those. >> certainly. another state could say it is not permissible hearsay, and also, statements in the court was hearsay and even if the report was not and reach a different conclusion of professor simi, and perhaps we could produce our own expert that could controvert the professor. >> now, is this controvertible
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or run concurrent? >> i believe that they dispose of the case with the meaning of officer of the united states as well as the argument that we are making on term limits, but all of the consequentialist arguments that your honor is making is all reasons to reverse the colorado ruling, but i would say that we don't believe it is -- >> you keep saying "term limits" and there are other presidential qualifications. age, citizenship, and a separate amendment, the 22nd amendment which doesn't permit someone to run for more than two terms, and we have a disqualifying of candidates who are not of age if elected, and we have a history of at least one state disqualifying someone who was not a u.s. citizen. >> right. >> are your arguments limited to section iii? >> not quite. the question, justice sotomayor
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is if the violating or altering extant qualifications to the constitution. >> so you want us to say that -- i am wondering why the term limits qualification is important to you. are you setting up so that if some president runs for a third term that a state can't disqualify him from the ballot? >> of course, the state can disqualify him, because it is not feasible by congress. if the state is enforcing the constitution saying that you cannot appear on the ballot because you have served two terms on the ballot. >> and the same if they are underage and the same if they are not a u.s. citizen. >> same if they are not a u.s. citizen for sure. the age is a little bit more nuanced, because you can imagine the person is 34 years old at the time of the election, but turns 35 before inauguration. >> well, that would probably
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come up to us at some point, and the state would make a decision, and say that he is ineligible, and we would have to decide that question then. my point is that what adding qualification to what term limit is your argument based on? i am confused. >> so i will start with the state like colorado says that you cannot appear on the presidential ballot unless you are 35 years old on the day of the election, and this is a violation of the ballot, because there is a candidate who is 34 and turns 35 before inauguration day. what colorado has done here, the supreme court is similar, because under section 3, president trump would have to qualify during the time that he would hold office, and the supreme court is saying to president trump that you would have to qualify under section iii at the time of the election according to the supreme court.
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>> so for a point of clarification, you mean term limits, and you mean our determination of term limits -- >> yes, the term limits under thorntop and maybe i should call it thornton. >> yes. >> and does it have something to do with the fact that the particular circumstance that you are talking about can change -- is that what you mean, because i am trying to understand the distinction of the provision in the constitution that leads to disqualification of the basis of insurrection behavior and the other provisions that justice sotomayor points out, because they are all extant constitutional requirements, but you are drawing the distinction? >> yes, because some are categorical. >> what do you mean by categorical, whether or not you are insurrectionist is categorical? >> because congress can lift it by 2/3 vote.
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>> why does that change the initial determination whether or not you fall into the category? i don't understand that you can be excused from having been in the category? why does it is not make it a categorical determination? >> because we don't know if president trump is going to be excused before he is sworn in on january 20th, 2025, and the court that says that president trump has to show today that he would qualify under section iii isk a se accelerating deadline e has the prove. >> that is by virtue of holding office. >> section iii is holding office. >> now, that i have the floor, can i ask you to address your first argument. which is the officer point. >> why don't we -- >> could we -- >> okay. if we do this and then go to that? >> sure, sure, sure. >> an opportunity to do officer
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stuff? >> absolutely. [ laughter ] >> i just want to understand that on this theory, what is the sum total of ways that the section iii can be enforced and that somebody out there can say, yes, there's been a former president who engaged or led or participate d in an insurrectio and should be disqualified from office, and what are the sum total ways that enforcement can happen? >> the answer to that question is going to depend what your honor depends on griffin's case. if you affirm the rational of griffin's, only way that it can be enforced is through legislation. and you can reinstate the warrento case.
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>> and how does that fit to the answers that we have been given that you say that congress has to have the ability by 2/3 vote to lift the disqualification. >> right. >> so, too, i would think that provision would be in some tension with what you just said, because if congress has the ability to lift the vote by 2/3 majority, surely, it cannot be that one house of congress can do the exact same thing by a simple majority. >> yes, certainly some tension, and professor beau and -- >> then i must be right. >> and so, it can be lifted where it is a pardon or power, and congress creates a mechanism in which the insurrectionist issue is determined by some entity, and maybe the legislature through some elected
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house where they have the ability to judge the qualifications of the member, and if it is outside of congress, when they act, and if it is the warrento, each member had the writ to seek the ouster of office under section iii but it is subject to the amnesty provision in the 14th amendment, and we acknowledge the tension, but we don't believe it is an insurmountable obstacle. >> i don't see the tension, because if you are acknowledging the lifting of congress by 2/3 vote by pardon, surely one would not argue the fact that the president or the governor can pardon someone from a criminal conviction or offense doesn't mean that person couldn't be prosecuted in the first place for the criminal offense. >> right. >> i don't see the tension. they are two separate thing, did the person engage in this active they is prohibited.
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and if this person did, are there reasons that the qualification should be lifted or pardon granted. >> right. and if the court accepts griffin, that is the regime we would have. >> and also, there is a limit on what one can infer from the mere fact that congress can lift the disqualification, and you cannot infer from that it is permissible to have prior determination that the person did engage in the insurrection, and you can't make that inference, because it is not logical. >> what the intention is that you would have the same actor, and say, look, that actor can lift the qualification by 2/3 vote, but you are saying that only that actor can put the qualification into effect in the first place, and do that by far less than 2/3, and do it by a simple majority of one house. >> or do it by do nothing at all if the holding of griffin is right, because congressional action -- >> well, the only thing that takes to have no action is, you
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know, half plus one saying that we don't feel like it. >> that why we tried to characterize the griffin argument as we did by the preem ton s-- preemption of doctrine. >> and the meaning of the section iii of the 14th amendment by the chief justice of the united states a year after the 14 amendment seems to me to be highly probity of the meaning or the understanding of that language otherwise elusive language is. >> i think it is probative, justice kavanaugh, and we didn't rely on the point that you are making, because we have the justice chase opinion in the jefferson davis case, and that could boomerang on us, and that why we did not push it hard in the briefing. >> and why don't you finish the sentence. >> but it is relevant and probative for sure, but there is other evidence that might perhaps undercut the usefulness
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of trying to characterize griffin's case as emblematic of the case. >> and why don't we move on to the officer point, and justice jackson? >> yes. i have a question about it, because you are making the contexturalist argument about it, and as i am looking at section three, i see two parts of the section iii and the first is the list of offices that the qualified person is barred from holding, and the second are the specific circumstances that give rise of disqualification. so first, am i right to seeing two different things are happening in the first section? yes, for sure. >> are you arguing both in case or just one? are you arguing both that the office of the presidency should not be considered one of the barred offices and that a person who previously took the presidential oath is not subject to disqualification? >> i am arguing both.
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>> i don't see that in the brief. i see a lot of focus on the first and not the second. >> there is focus on the second, and we have a somewhat heavier lift on the first point. >> why? it seems that you have a list and the president is not on it. >> that is a certainly an argument in our favor, but respect to officer of the united states, that is used repeatedly in the constitution, and the commissions clause and the enforcement clause and impeachment clause, and every time it is used it is excluding the president. >> and that is clearly the first argument which we have a list of offices that the person is barred from holding, right. under your theory or under the language of, and we see that it is beginning with senator, representative, elector of the president and vice president and all other civil or military offices. >> offices under the united states. >> offices under the united states, but the word president or vice president does not
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appear specifically in that list. >> right. >> so i am trying to understand, are you giving up the argument, and if so s why? >> we are not giving it up at all, and you are right, the president and the vice president are not specifically listed, but the anderson litigants say they are encompassed under the offices of the united states. >> do you agree that the framers would have put such a high and significant and important office and smuggled it in under the catch all phrase? no. we would want the copies to -- >> i am sorry, your brief says that you did not take a position than point. >> i am sorry. >> the brief said -- i don't have the cite. i apologize. you don't affirmatively argue that point. >> in blue brief? >> yes. >> but we did in the reply
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brief, and how we phrased it in the opening brief is that there are potential issues if this court rules under office, because it appears in emollients clause, and the impeachment clause, and the -- >> would we have to necessarily say, because the point is that section iii is unique, and something is happening with section iii that could explain why certain offices were lift off or whatnot? >> perhaps, but there is also some implications of the other parts of the constitution which help us on the united states office argument, and also, if this court were to say that president were excluded office of the united states, that could imply that the president is not covered under the emolument clause. >> sfeping back, a lot hinges between your argument of the term office and officer. so i am wondering --
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>> yes. >> -- what theory do you from the original understanding or the contexturalist point why those terms would carry such different weight? >> because it is clear from constitutional text that there are officers who do not hold offices in the united states, and for example, the speaker of the house and the protempore, and they have to be officers if they are to be covered by the presidential succession act, because only officers can serve when there a vacancy in the presidency or the vice presidency, but they are not officers is because of the incompatibility clause, because if you are a member of congress, you cannot simultaneously hold an office under the constitution, and members of congress cannot hold offices. >> i appreciate the response, but anything in the original
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drafting, history, discussion that you think that illuminates why that distinction would carry profound weight? >> not that we are aware, and these are contextural analysis, and not relying on the thought processes of the people who drafted the provision, because they are unknowable, and even if they were knowable, we are not sure they are relevant, because this was enacted as a compromise, and radical republicans who wanted to go further, and if you are looking at the earlier drafts, some people wanted to ban all insurrectionists even if they swore an oath, and others who wanted to ban them from voting. >> thank you, counsel. i have a technical question. the statue of 1870 if it were still in effect, it would require you to modify the arguments slightly, and it was repealed in 1948, and try ied to find it, but i couldn't.
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do you know why it was repealed? >> i don't. it looks like it was a reorganization of the u.s. code. it does not appear to be any policy motivation, and it appears several were repealed in that year. >> and anything further? justice alito? >> any history of the states using section iii to bar federal officeholders? >> not that i am aware of, because of the griffin's case, and it has been the law, i shouldn't say it has been the law, because it is a district court. >> justice sotomayor? >> i wanted to pin down section iii that even though the president may or may not qualify, the presidency may or may not qualify as an office in the united states, the principle argument is that the president is not an officer of the united
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states? >> i would say it more forcefully than your honor described. we believe that presidency is excluded as an officer of the united states, but the president is an officer of the united states is the stronger of the two texturally. >> and it is a little gerrymandered rule there to benefit only your client? >> i would not call gerrymandered. >> well, i know you did not make it up, and some scholars have been discussing, but in that reading, only the petitioner is disqualified, because virtually every other president other than washington has taken an oath to support the constitution, correct? >> that right. every president, to our knowledge, and john adams might be excluded, because he took it as a vice president, and president biden would be covered, because he took it as a member of congress, and this is true of every other previous president.
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>> would that be true, if we were to hold more narrowly, in a reversal, that it is not section iii at issue, but thornton and others as to whether section iii can be held to the president. >> and that would be to every president. >> and not just to yours. >> justice kagan. >> and you don't have a lot of evidence that your generation is looking at office versus officer of the united states. i mean, it would suggest that we should ask if that is a rule that is a sensible one, if they had thought about it, and what reason would they have given for that rule. it seems that there is no particular reason, and you can think of lots of reasons for the contrary who have engaged in
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high office, and they have not held high office before, why would that exist? >> it has happened before with high office, and sometimes happened with constitutional compromise, and if there are agreed set of words that have passed house of congress, and they did not get their way, and everyone goes away miserable, but this is the text that passed, and it is odd that president trump would fall through the tracks, but if office does include him, the court would have to find that. >> and is there any better reason as justice jackson said, that an insurrectionist cannot hold the whole panoply of offices? >> i think that is a tough ter a
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-- tougher argument to make, because of all of the offices, the president is the one that you would want to keep out as the confederacy, and this is why we are not conceding office under it, but we definitely have the strong erer contextural and textural case. >> and i want to look at the textural case and the impeachment clause and the commission's clause, and the ball has been bouncing back and forth. >> three textural inferences to be drawn from the three provisions that your honor just mentioned, but the contextural clause is the strongest, because it shall commission all of offices, and shall is mandatory, and all is all encompassing and the president cannot commission himself. so the anderson litigants are trying to say that there is somehow an implied conception
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there, because the president cannot obviously commission himself, and that should be interpreted to be all other than the president, but you have members of congress who are commissioned other than the president, but the only sensible distinction given the language of the commission's clause is that officers of the united states are appointed and elected officials other than president and the vice president are not. and the impeachment clause reinforces that and the president and the vice president, and others shall be removed from office for impeachment for high crimes and misdemeanors and the vice president and the president are listed separately, and then of course, the appointments clause, and the president is not appointed pursuant to artle ii and neither is the vice president, and they can't be officers either. >> how does article i section vi fit in this? >> the officers in line of
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succession? >> yes. >> you have to be an officer to be in the line of succession. and we have statute that puts speaker and the protemporary in line, because they are not subject to impeachment and not subject to provision ii, and so there is a gap between the phrase officer and officers of the united states, and reinforcing that it is a term of art that does not refer to just officeholder as anderson lit agains said, but refer only to those appointed and not elected. >> okay. justice ka gvanaugh? >> i would like to look into in the processes used ratified in 1668, the next year of chief justice chase opines that the states do not have the authorities that only congress has the authority to enforce
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that, and that could be evidence as you say the original public meaning, and some evidence, and a precedent and though not binding, but it is reinforced, because congress, itself, relies on the enforcement of 1870 against the backdrop of which congress does legislate, and as justice alito says, the historical practice for 155 years has been that's the way it has gone, or there have not been state attempts to enforce disqualification under section iii of disqualify in the years since. and that is the enforcement of what happened in 1868, 1869, and 1870. do you want to add to that or -- >> no, that is crucial to the case. it is the griffin case, and the providing of the backdrop of legislation, and why we should
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read those extant mechanisms and why we should read that as state court remedies. it is a form of implied exemptions, because congress made these in explicit reliance of griffin's case. >> if we agree of griffin's case, and what you have elaborated there, that is the end of the case, right? >> yes, unless congress decides to enact another statue. >> in addition to 2883? and you agree that someone can be or shall be disqualified from office if convicted. >> and our client is saying that he has presidential immunity, and so we would not concede that he can be prosecuted for what he did on january 6th, 2021. >> and that is to the exclusion
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of 1883. >> and so griffin is habeas? >> yes. >> and even if section iii is not a collateral relief under habeas which is new at the time, and could griffin have raised under appeal that judge sheffy could not have constitution ally sat on my case, because you a insurrectionist and he could have won then? >> no. the court would have accepted rational as your honor is saying. >> griffin's case, and there is language that is broad, but atg a habeas proceeding, and griffin needed a cause of action and why wouldn't it work for a trial for him to challenge sheffy's
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ability to challenge the adjudication of the case. >> it is a case that only congress can provide the means of ep forcing section iii and congress has not enacted any such statue that would give mr. griffin the right to raise that at his trial. so he would have to await legislation from congress. >> so, assume they disagree with you about the officer argument that covers president trump, and say that congress enacts a cowarrento statue, and so in this case, for a prosecutor to bring such an action against him and remove him from office in a cowarrento way, and wouldn't that be an impeachment way, and so he would be extracted from office outside of impeachment, and the only way to get me out
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of office, president trump, would say, is impeachment instead of this cowarento way? >> i am not sure, because your honor's impeachment action would apply to not only the president but any officer, and i don't know how that played out in the courts and whether impeachment is the exclusive form of -- >> i am not sure that anyone argued it, but you said that it is the exclusive province of congress, and you said that it has to apply after one is holding office, is elected, and i'm asking then if the implication of the argument is that congress could not enact such a provision that applied against federal officeholders covered under section iii as opposed to state one? >> i believe they could, and the impeachment clause says vice president and the president and other officeholders could be removed from office by
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impeachment and conviction, and this is not the only way. congress can defund a position, and effectively not the same as formal removal, but effectively restored in laird when the jeffersonians repealed the midnight act, and abolished the judgeships, and some thought that was the only way to do it is through impeachment, but chief justice marshall upheld that, and that is the relevant way of showing that ipm peachment is not the only way to get rid of a federal official. >> okay. one point of clarification. does president trump have any due process right here? i am wondering this goes to not the cause of action of the preemption point, but more to the question of the procedures that he might have been entitled to, and i don't see that you say that he had any or any constitutional right to ballot
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or a constitutional right to be heard. is that right, the due process is right? >> we made the argument below but not in the briefs to the court, because your honor is suggesting, and this is correct, that the proceedings before low to put it charitably is this is highly irregular. >> i was not suggesting -- >> and winning on due process does not do as much for the client as the other arguments that we have made, because it is ruling specific to this particular proceeding in the state of colorado and leave the door open for colorado to continue on remand to exclude him on the ballot. >> okay. thank you. >> justice jackson. >> i would like to ask whether or not the presidency is one of the barred offices. i guess i am a little surprised to your response to justice kagan, because i thought that the history of the 14th amendment provides the reason for why the presidency may not be included, and by that i mean i did not see any evidence that
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the presidency was top of mind for the framers when they were drafting section iii because they were dealing with a different issue, and the pressing concern as i see the historical record was actually what was going on under the lower levels of the government, and the possible infiltration and embedding of the insurrection of the state apparatus, and the real risk that the former confederates might return to power in the south via the state level elections and either in the local offices or the representatives of the states in congress. and that's a very different lenses. your concern is to make sure that the people don't come back through the state apparatus, and control the government in that direction seems to me very different than the worry that an insurrection is going to seize control of the entire national government through the presidency. so i am surprised that you would
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given the text of the provision and the historical context that seems to demonstrate that their concern or the focus was not about the presidency, i just don't understand why you are giving that argument up. >> there is some evidence to suggest that, justice -- >> any evidence to suggest that the presidency is what they were focused on? >> some evidence, because they said they didn't want jefferson davis to be elected presidency, and some drafted for the presidency and the vice presidency. >> but it was not the final enactment -- >> i am sorry, not the final enactment, but there was some concern about some people of a insurrection to be president, and we don't just take some the evidence and use its an s at
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tansgentially. >> i understand. so you want us to end the litigation, and you want us to end this case in federal court, is that your conclusion? >> i don't know how it could, because if you enact a statue -- >> so you want to have congressional enacting legislation is necessary for either state or federal enforcement? >> that is correct. >> all right. final question. the colorado supreme court concluded that the violent attempts of the petitioner's supporters in this case to halt the count on january 6th qualified as an insurrection as defined by section iii and i read the opening brief to accept
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that those events counted as an insurrection, but then the reply implied they are not. so what the position -- >> we neither accepted nor denied this is an insurrection, but we said that president trump did not engage in any act that would be an insurrection -- >> so what is your account that the reply brief said that it is because of, i think, that you said that it was not an organized attempt to overthrow the government. >> that one is many reasons. for insurrection, there has to be an organized attempt to overthrow the government in a chaotic -- >> that is not an attempt to overthrow the government? >> none of this was met. it was a riot, and all of this was criminal and violent, and all of these things, but it is not an insurrection as used in section iii. >> thank you. >> thank you, counsel.
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>> thank you. >> mr. murray. >> mr. chief justice and may it please the court, we are here because for the first time since the war of 1812, our nation's capitol came under assault and for the first time, it was incited by the sitting president of the united states to disrupt the peaceful transfer of power. by engaging in the disruption of presidential power, by this court, you should create a special exemption to section iii to apply to him and him alone, and he says it applies to all
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insurrectionists, except for others who never held a formal office, and there is no rationale for this, and the court should reject the claim that the framer made an extraordinary mistake. section iii uses deliberately broad language to cover all powers covering the oath of the constitution. my frame has an acclaimed difference of an office under and the officer of the united states, but this case does not come down to mere preposition. the two phrases or two sides of the same coin referring to any federal office or to anyone who holds one. president trump's other arguments for reversal ignore the constitutional role of the states in running presidential elections. under article ii and the 10th amendment, the states have the power to ensure their citizens electoral votes are not wasted on a candidate who is
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constitution ally barred from holding office. states are allowed safeguard their ballots by excluding those who are underaged, foreign-born, running for a third presidential term or as here, those who have engaged in insurrection against the constitution in violation of the oath. i welcome the court's questions. >> all right. do you have contem p tetemporan examples of national candidates and not its own candidates, but national candidates? >> the only example i can think of, justice thomas, is the example of congressman christy who was elected in georgia in 1868, and the governor refused to certify the election results, because mr. christy was
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disqualified, and it is not the same, because we didn't have the same ballots. they were write-in, and ball lots were not the same, and so there were not the same process to determine before the election whether someone was qualified, and so there were not the same powers to run elections. >> so it would seem that particularly after reconstruction and after the compromise of 1877 and during the period of redeermredeemers plethora of confederates still around and any number of people who would either run for state offices or national office, and so that would suggest that there would be at least a few examples of national candidates being disqualified, if your reading is
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correct. >> well, there were certainly national candidates disqualify by congress refusing to seat them. >> i understand that, but that is not this case. did the states disqualify them. i understand that congress would not seat them. >> other than the example that i gave, no. but again, your honor, that is not surprising, because there wouldn't have been, and states certainly wouldn't have had the authority to remove a sitting -- >> what is the purpose of section iii. the states rescinding people, because the concern was the former confederate states would continue to be bad actors and the effort was to prevent them from doing this, and you are saying, well, this also authorized the states to disqualify candidate, and what i am asking you for, if you are right, what are the examples. >> well, your honor, the examples are that the states exempted many candidates for state office, and we have a
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number of published cases for -- >> i understand that. i understand the states controlling state elections and state positions. what we are talking about here are national candidates. i understand that you are looking atphoner or foote or conflicts after the civil war, and there are people who felt strongly about retaliating against the south, the radical republicans, but they did not think about authorizing the south to disqualify national candidates. that is the argument that you are making, and what i would like to know is if you have any examples of this. >> many of those historians have filed briefs in our support in this case making point that the idea of the 14th amendment was that both the states and the federal government would ensure
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rights and if the states failed to, the federal government would step in, but the reason that there are not examples of the states doing this is idiosyncratic ones, because it was a different way, and the states had the power under the 10th amendment to run the elections, and they did not use that power to access ballots until 1890s, and until then, there was amnesties and this is moot. >> but looking at justice thomas's question from 30,000 foot level, the point of the 14th amendment was to restrict the state power, and the states shall not abridge privileges, immunity or deprive people of property without due process and deny equal protection, and on the other hand, it augmented federal protection that it would have congress to enforce it, and
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wouldn't you look there for states and particularly confederate states to enforce the presidential election process? that seems to be a position that is at war with the whole thrust of the 14th amendment and historical. >> no, your honor. we would locate the state's authority to run the presidential elections not in the 14th, but article ii. that is plenary. >> that is section iii? >> no, article 2 to give the broad power of how the states select the narrower power to enforce the -- >> but the narrower power that you are looking for is the power of disqualificdisqualification,? that is a more narrower, and you are saying it is explicitly
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extended to the states that is not in the clause at all. >> we would say nothing in the 14th amendment is taking away from the states the broad and plenary power as the state cease fit. as we said, that power is narrowly plenary unless there is something that tells states they cannot do it, and it is intended to expand the federal power and restrict some state power in some ways, but the states are bound to enforce and apply the restrictions of the 14th amendment, and so it is difficult to see why the states would not be -- >> and that is including the lesser argument that the states have the power or the legislature has the power to choose the electors granted, but just because there is one authorized means in the constitution to a particular end does not mean that there's any means to that end. so, i think that you are taking the elector's argument, and
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bringing it into section iii, where as the chief justice says is, and justice thomas, there is no historical evidence to support the theory of section iii nor to explain the overall structure of the 14th amendment. >> we certainly have a long history in the country of states using their power to determine the manner of selecting presidential electors to enforce other qualifications in the constitution. i don't take it that there is a great debate of whether or not states are to exclude foreign-born candidates or if president bush or president obama would want to run for a third term they would be excluded and i don't see how section iii would be treated differently. >> well, when you are looking at section iii the term insurrection jumps out, and the questions are what does that mean, how do you define it, who decides, who decides whether someone engaged in it, and what
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processes as justice barrett alluded to, and what processes are appropriate to figure out if someone did engage in that, and that is what chief justice chase focused on after the 14th amendment to say that these are difficult questions, and you are looking right at section 5 of the 14th amendment that tells you that congress has the primary role, and the difference here is the processes and the questions that jump out at you when you are looking at section i ii, and that what is jumping out at you. >> and what jumps out is does congress become the only way to provide that, and it says that congress shall have power -- >> and put most boldly, the question that you have to confront is why a single state should decide who gets to be
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president of the united states. in other words, the question of whether a former president is disqualified for insurrection again sounds is awfully national to me p and whatever means to enforce it suggests federal national mean, and why does if you were not from colorado, but wisconsin or from michigan, and et r it really, what the secretary of state did is going to make the difference of you know, whether candidate a is elected or candidate b seems extraordinary? >> no, it is this court who decides constitutionality, and decides it for the nation, and certainly questions of importance comes up -- >> well, the court would say that the state has the power to
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do it, but i am asking you have to go further to say, why is that the right rule? why should a single state have the right to make this determination not only for their own citizens, but for the rest of the nation? >> because artle ii gives them the power to appoint their own electors as they see fit, but if they use a federal constitutional question that then this court decides and other states, and if this court affirms the decision before determining that president trump is ineligible to be president, other states have to determine what that means for their procedure and -- >> we affirm that he is ineligible to be president, and maybe some states say, well, we will keep him on the ballot anyway, but it is really as justice kagan said, the effect of colorado deciding, and it is true, and i want to push back that it is a national thing,
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because this court will decide it. and you say that we have to review colorado's factual record with clear error of review, and we would be stuck with the first move here, we are stuck with that record, and i don't want to get into whether or not the record, and maybe the record is gr great, but what if it weren't, and what if the hearsay rules are one-offs, and if this is just made by the secretary of state without find, and why should this apply, and doesn't it buckle back into the point that justice kagan was making as we made with attorney mitchell that it is not a state call. >> and one, is that it is factual findings with clear error, but president trump made the finding in the brief that
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sometimes it finds with a resolution, and it can be a bowe's review, and it can be narrow, but sometimes president trump's own statements that he made in public view for all to see -- >> but you are saying in this context in high stakes that if we are reviewing the facts de novo, you want us to watch the video of the ellipse, and then make the decision without any lower court fact-finding. >> president trump is urging this court to find the eligibility of fact finding on page two of the brief, because at any point of this briefing has he suggested any other factual point of the record to have any other witness, and the essence of the case is his own statements and in particular his own videotaped statements on the
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ellipse -- >> mr. murray, before we leave it, and come back to where justice kagan was, and do you agree that the state's powers here over this ballot for federal officer election from to come from some constitutional authority? >> members of this court have disagreed about that -- >> i am asking you. [ laughter ] >> the majority of the members have said that the powers come from article ii and we believe it is the same whether it is in article ii or reserved power under the 10th amendment. >> you are saying that court has held, and you are not asking us to revisit thornton or term limits or whatever you want to call it, but it is not coming from some constitutional authority? >> no, i am not, your honor. >> and under some constitutional clause, and nobody is talking about whether he is 35 years old or natural born or whatever, not
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at issue here. we are talking about something under the 14th amendment in section iii and that is where you have to find the authority, right? >> we find the authority in article ii of the state's plenary to run elections. >> but this is a federal office and it has to come from the constitution, and you are seeking to enforce section iii? >> we are saying to select presidential electors in any way they can see fit, they can apply it in section iii. >> can they do it without section iii or on some other basis outside of the section iii -- >> that would run into term limits -- >> right. so it has to come back to section iii and if that is true, how does it work since it talks about holding office and not who is running for office. and that is thmitcll was ming,
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seems to me that you are asking for the enforcement of the election context of the provision to the constitution that speaks to holding office, so it serve? >> i don't know if it is different, because the other qualifications of the office is the eligibility for the office. there is nothing unconstitutional about a 30-year-old trying to get on the ballot. >> except for this disability can be removed under section provision of removing the disability does not negate the fact that the disability existed today and existed since january 6th, 2021, when president trump engaged in insurrection. so were the actions after state ultraveras?ft the >> well, that going to a estionf you ca state ultraveras? >> well, that is going to be a question if you can attack a de facto officer, and this is the one case of griffin that we
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agree where the justice said, i have talked to my supreme court colleagues and we unanimously agree that you cannot collaterally attack all of the actions of the officer who is holding position. >> circle back to where we started, right. so this is section iii and the authority has to come from there and holding office, and it is a particular kind of disability that can be removed by congress, and it is the only one like that. right. they cannot remove age or citizenship. and how should that inform our thoughts of the state's efforts to regulate the ballot for a federal office? >> the colloquy that my colleague had here with justice alito is that it does not negate that the disability exists today and into the future, but much like the president can pardon somebody for criminal conviction, does not make the conviction somehow contingent,
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and i would note that if president trump were appointed to office today, or as a state judge, that shows that the disability exists now. the fact that congress has the ability to remove the disability does not remove the disqualification nor bestow upon president trump to run for offices that he cannot hold in violation of state law and state procedure in remove the disqualification nor bestow upon president trump to run for
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offices that he cannot hold in ? >> yes, that is right. a flood of requests before amnesty went into effect, because everybody understood that they would be disqualified the moment that article ii went into effect. >> and counsel, what do we do with the plain observationsf your position. if colorado's position is upheld, surely disqualification proceedings on the other side, and some of those will succeed, and some of them will have different standards of proof, and some of them will have different rules of evidence, and maybe the senate report won't be accepted in other, because it is hearsay, and maybe it is beyond a reasonable doubt or whatever, but in quick order, i would expect, though my predictions have never been correct, but i would expect that, you know, a goodly number of states will
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say, whoever the democratic candidate is, you are off of the ballot, and others for being a republican, you are off of the ballot, and so a handful of states to decide the presidential election, and that is a daunting consequence. >> certainly, your honor, and the fact there is a frivolous applications is not a reason -- >> well, you may think that they are frivolous, but the people bringing them may not think. insurrection is a broad term. if there is some debate about it, i suppose that is going to go into the decision, and then eventually, we will be deciding if there is a insurrection of one president did something, and somebody else did it, and do we wait for nearer the time of counting the ballots and sort of go through which states are valid and which states aren't? >> there is a reason that section iii has been dormant for 150 years because we have not seen anything like january 6th
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since reconstruction. and insurrection against the constitution is extraordinary -- >> it seems that you are evading question. you are say other states are going to -- and you say, well, it is all right, because somebody, presumably us, they thought it was insurrection, but they were wrong, and we are right. and we have to develop rules for insurrection. >> yes, and just like this court can develop rules for insurrection, and they can make it clear that insurrection against the constitution is extraordinary, and requires a concerted is group effort to resist through violence and not some ordinary application of the state or federal law and the mandate -- >> on your point that it has been dormant for 150 years and the other side would say that chief justice chase's opinion in griffin's case to start which says that congress has the authority here and not the states, and followed up by the enforcement act of 1870 in which
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congress acts upon that understanding which is followed and there is n such authority, and the reason that it is dormant is that there is a settled understanding that chief justice chase even if not right in every detail, was right in the branches of the government have acted under that settled understanding for 155 years and congress can change that and congress does have section 2883, the insurrection act, and criminal section, and congress could change it, but they have not in 155 years in relevant respects for what you want here today at least. >> no, justice kavanaugh, the reason it has been dormant is because 1876 essentially all former confederates have received amnesty, and we have not seen anything like that. >> can i go that point -- >> no, after that -- >> justice alito. >> i don't know how much we can infer from the fact that we have not seen anything like this
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before and therefore conclude that we are not going seeing? in the future from the time of the impeachment of johnson, until the impeachment of president clinton, more than 100 years later, there were no impeachments of presidents, and in fairly short order over the last couple of decades, we have had three, so i don't know how much you can infer from that. >> yes, but if this court affirm, this court can write how rare this insurrection is, because it requires an assault not just on the application of law, but on constitution ally man mandated assaults like we saw on january 6th, coordinated assault on the constitution. >> and the power that you describe as plenary is really plenary. and suppose the outcome of the
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president really comes down to the vote of a single state, and the electors of the single state are going to vote, and suppose that candidate a gets a majority of the votes in that state, but the legislature really doesn't like candidatea and thinks that candidate a is an insurrectionist, and passes a law ordering the electors to vote for the other candidate, does the state have that power? >> there are principles that come into play after the people have voted that the state cannot change the rules midstream, and i am not sure, because i am not aware of the court addressing it. >> well, change it is not after the election, but three days before the election, based on the fact that the states' polls look bad? >> i think they could based on
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chakolo, because much of the state's electors are picked and assign them, and that would be much more extraordinary than we have here which is simple state ballot access to say that we will only put on the ballot an individual who is qualified for office. >> can i ask you a question, which justice gorsuch asked about the de facto office, and looking at the and going forward rather than you judging the validity of an act that the presidentially allegedly engages in insurrectionist, and the time he leaves office, and that interim period, would it be okay for the military officers ignore the orders of the president in question? >> i am not sure that anything gives military officers the
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authority to disobey the president. >> why you say that, because you say defactor, would prevent someone to take official remedies for what takes place after the date he was disqualified, but if he is in fact disqualifieded from that moment, why would anybody have to obey the direction from them? >> ultimately, there has to be a procedure in place to adjudicate the impeachment in place, and congress could impeach the president or otherwise negate the authority of the sitting president? >> why? under what theory. because you are saying that he is disqualified from holding office from the moment it happens. >> correct. >> so, it operates, and no legislation necessary, and this is the whole theory of your
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case, and no procedure happens automatically. >> well, certainly, you need a procedure to have any remedy to enforce the qualification -- >> that is a whole separate question, and de facto, and that does not work here. put that aside. he is disqualified from the moment, self-effacing and could act as he or she would -- >> i don't think -- >> no. de facto does not work, mr. murray, because that is to ratify the conduct done afterwards and judicial review. put it aside. i am not going say it again. put it aside. mr. alito is acting a different one, and difficult for you i understand, but it deserves a
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answer. under your theory, would anything compel a lower official to disobey in your view the former president? >> i am imagining a situation where for example a former president were 25 and ineligible for -- >> no, no, section iii and please don't change the hypothetical. i like to do it, too, but please don't do it. >> the point that i am trying to do. >> he is disqualified from the moment, and commited an insurrection and which ever party, that happens. boom. it happened. what would compel, and i am not going to say it again. if you don't want to answer it, fine we will move on. what would compel someone to obey. >> we have statutes and rules for obeys the chain of command, and the person is in office, and
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if they don't have the authority, and the only way to get the person out of office is impeachment, and if you interpreted section iii in light of other light of the office, impeachment is the only way to validate that they shouldn't hold that office and should be removed. >> mr. murray, may i ask you something that justice kagan brought up earlier which is the concern of uniformity and the lack thereof if states are permitted to enforce section iii in presidential elections. i didn't understand the argument or the response to her about that. >> well, certainly, if congress is concerned about uniformity, they can provide for legislation, and they can preempt state legislation. >> but you say it is not necessary. >> it is not necessary in the absence of the federal legislation, these questions come up to the court in the skam way that other questions come up
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in that the state adjudicates them, and if they have not brought a process for those to be heard, one can make those challenges, but as assuming here, we have a full evidentiary record and opportunity to present evidence. >> i understand that which could resolve it so we have a uniform ultimate ruling on it. i guess that my question is that why the framers would have designed a system that could result in interim disuniformity in this way, where we have elections pending in different states suddenly saying that you are elgigible and you are not. >> well, they don't want rebels to hold office, and the one imperative to make sure that oath breakers take office is that it would be odd for states not to enforce it, and only the federal government can enforce it, and that congress can
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essentially rip the heart out of section iii by the simple majority of kcreating the abiliy to enforce it. by the way for the absence of federal enforcement is providing safeguards. >> i will ask you about the history when i get a chance again. thank you. >> thank you, counsel. >> justice alito? >> suppose there is a country that proclaims again and again and again that the united states is its biggest enemy, and suppose that the president of the united states for diplomatic reasons think it is in the best interest of the united states to provide funds or release funds so that they can be used by that country, could a state determine that person has given aid and comfort to the enemy and therefore keep that person off of the ballot? >> no, your honor.
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this court has never interpreted aid and comfort language which is present in the treason clause, but commentators have suggested that it is rarely applied because the treason clauses are so rare. first of all, aid and comfort applies only in the declared war or at least adversarial relationship where there is in fact a war between two country, and secondly, the intent standard would do work there, because under section iii the underlying section there of aid and comfort has to be done with the intent to the unlawful insurrection or to aid the enemies in the pursuit of war against the united states. >> let me come back to the question of what we would do if we were, if different states had adjudicated the question of whether former president trump is an insurrection using a different record, different rulings on the admissibility of
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evidence, and perhaps different standards of proof, then what would we do? >> ultimately, this court would, and first of all, if there were deficiencies in the record, the could refuse to hear the case or -- >> what would we have the rule on the appropriate evidence in the case, and would we have to decide what is the appropriate standard of proof or give any deference to the findings by state court judges some of whom may have to be elected? would we have to have our own trial? >> no, your honor. the court takes evidentiary record as it is given, and here we have evidentiary record that is sufficient for a decision in this case, and as i dekissed th -- discussed there is a bowes court -- >> well, you not answering my question, and it is not helpful.
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so, suppose we have two different records and two different bodies of evidence and two different rulings on admissibility, and two different standards of proof, and two different sets is of fact-findings by two different judges or maybe multiple judges in multiple states, then what do we do? >> first, the court would set the legal standard and then decide which view of the record was correct under that -- if the -- >> which view of what record of which record? >> if this court had two case before it, and the record were sufficient in which both sides had their opportunity to present the case and the essential facts in the case which is sufficient for decision, then this court has the look at the evidence presented and decide which holding was correct, and then decide that issue for the country, and certainly here, when there is a complete record, lower courts then will be applying that decision, and it is unlikely that any court would say that we will reach a different decision than the u.s.
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supreme court did particularly if the court is relying and the indisputable facts of what president trump said on video and the twitter feed which is the essence of the case here. >> and you have an expert, and take that example, of an expert testify of the meaning of what president trump said. do you think it is possible that a different state court would apply dalbert differently and then say, this person is not allowed to express an expert opinion on that, and do you believe that is outside of the realm of imagination? >> well, two points on that. president trump did not appeal that, and he did not opine on the meaning of the words of president trump's words and the effect of his words on violent extremist, and the essence of the testimony was videotaped
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words of president trump himself encouraging and inciting -- >> i am not taking a position one way or another whether that professional's testimony should have been admitted, but what i want you to do is to grapple with what some people have said the consequences of the argument that you are advancing which is that there are conflicts of decisions in the states, and that different states will disqualify different candidates, and that i am not getting a whole lot of help from you how this would not be an unmanageable situation. >> if this court writes a opinion affirms on the indisputable facts of what president trump said and then affirmed on twitter, it would be irreversible for any state to overturn based on that fact of
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law, but it seems unlikely. >> justice sotomayor? >> there are two sides the other side's position. the first is that it is not self-executing. i want to put that aside. if we were to hold that the state does not have a right to hold a cause of action here, and they want the flip to say, no, but even congress can't do it, because they need implementing legislation. address that part of it. because assume that we rule that states don't have it, what would you have us say for the other side of the argument, and my colleague says that you need not then chief justice, but the circuit court justice chase said
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that which is that somehow, you need implementing legislation, like the 1870 act. you seem to say that is not true, because they could decide not to seat, seat a candidate, et cetera, so i don't know if legislation is necessary. >> and certainly, there are historical examples of members of congress under the congress article i power to judge the members of congress refusing to seat ineligible candidates under section iii and under the presidency it is going to create a number of issues if the court says there is no procedure for determining president trump's eligibility until after the election, and then what happens when congress counts electoral votes, and we won't count the electoral votes for president trump, because he is
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disqualified under the reform act. and then among the amicus briefs, that is disenfranchise and constitutional crisis in the make, and it is to address it now on a full evidentiary record now so that everybody can have clarity before they go to the polls. >> justice kagan. >> you have talked about the elaborate state's power under the electors clause, and the states having a role in enacting the typical ballot access provisions. i guess, you know, it strikes me that we have put some limits on that, and i will give you anderson versus celebrese and you are limited by states who can be taken off of the ballot, and this is minor party candidates, but one state's decision to take a candidate off
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of the ballot affects everybody else's right, and we talked about the provision of candidate's rights for national office and how a state's decision would have an impact beyond its own border, and if that is going for minor political party candidates, and why is that not after afocioriary? >> certainly in count ii for the principles, the state law deadlines for when a minor party candidate got on the ballot was relating to who the other parties were and who the other parties had picked, and here, there is no first amendment problems, and the state is trying to enforce a first
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amendment right. >> it did come up in the 1st amendment right, and it comes up in who has broader power in the federalment is -- federal system, and the federal system has some broader principles that there certain national questions that, it is the states are not the repository of authority. i took a lot of 1st amendment, not 1st amendment, but anderson's reasoning of what is a state doing to decide who gets to, who other citizens get to vote for president. >> colorado is not deciding who other states get to vote for president, but it is deciding how to decide its own electors under its own power, and congress grants -- >> and the effect is obvious,
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yes? >> no, your honor. different states can have different procedures, and other states may allow the insurrectionists to be on the ballot, and we are not looking past the papers or the constitutional questions, and even in this cycle, there are candidates in the ballots who are not natural-born citizens is and off of other state, and this is in the state's powers to preserve their own electors and prevent disenfranchise of their own citizens. >> thank you. i have not had an opportunity to talk about officer point, and mr. mitchell is making the argument of the commission's clause that all officers are to be commissioned by the president and seems to be all encompassing that language. i'm curious as to your response to that, and along the way, if you would, i poked a little bit
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at the difference of office and officer, in the earlier discussion, you may recall, but one point that your friends on the other side would make, well, that is just how the constitution uses those terms. so, for example, we know that the president protem of the senate and the speaker of the house are officers of the united states, because the constitution says they are. but we also know that they don't hold an office in the united states, because of the incompatibility clause that says they can't. so, maybe the constitution to us today, to a lay reader might look a little odd in the distinction between office and officer and not prepositions or no nouns, and maybe the distin shun. thoughts? >> well, the meaning of officer and office is the same as today, the meaning of a person who holds office, and in the context
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of the commission's clause, that is referring to narrower class of officers, because we know that -- >> except it says all. >> we know that there are classes of officers, like the protem who does not get their -- >> that is in the constitution. >> and this is a class of officers who get their commissions from the constitution and not the president himself, and they are not commissioned by the president, himself, and if you read that aligned with the commissions clause, then it is really talking about the president's power if one needs a commission, it is the president who grants it. but it is important to bring us back to section iii in particular because that is 80 years -- >> but in particular, do you agree that the constitution makes that distinction in particular to president and president protem? >> in that it makes the distinction, but at least in
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section iii the officer of the united states is a person who swears an oath and holds an office. now, the president protem and the speaker of the house don't swear a constitutional oath in that capacity, but they swear a constitutional oath if they are a representative in congress in that separate non-presidential capacity. >> they are not an officer? >> they hold an office, but don't swear an oath in that official capacity. >> how can they hold an office in the incompatibility clause? it says they can't. >> well, i think that is a fair point. that may be an exception to the general rule, and one might consider them perhaps officers of the house and senate, because they are >> constitution says they are officers of the united states. so there are some instances when you have an officer but not an office. >> those may be an exceptional circumstance. but i would -- >> thank you. >> you're welcome. >> justice kavanaugh.
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>> concerns of the states having such power over a national office, other questions about different states having different standards of proof, and they seem underscored by this case at least the dissenting opinion below said i've been -- "i've been involved in the justice system for 33 years now and what took place here doesn't reaccepsemble anyt i've seen in a courtroom." and added "what transpired in this litigation fell woefully short of what due process demands." i don't know whether i agree or not, i won't take a position on that, but the fact that somebody is complaining not about the bottom line conclusion but about the very processes that were used in the state would seem to -- and that that would be permitted seems to underscore the concerns that have been raised about state tower. just wanted you to address that
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because that was powerful language. again not disagreeing about the conclusion, but the very fairness of the process. >> yes, your honor. but that language was with respect to justice not correct. president trump had a five day trial in this case. he had the opportunity to call any witnesses he wanted. he had the opportopportunity to cross-examine our witnesses and of it if he wanted to. and of course it was expedited by ballot access decisions are always on a fast schedule. but in the whole case from the trial court up to this court, president trump has never identified a single process other than expert depositions that he wanted to have that he didn't get. he had the opportunity for fact witness depositions, he had the opportunity to call witnesses remotery. he didn't use all his time at trial. there was ample process here and this is how ballot access determinations in election cases are decided all the time. >> some of the rhetoric of your position, i don't think it is your position, but some of the
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rhetoric seems to suggest the states can do this, no one can prevent insurrectionists from holding federal office. obviously congress has enacted statutes that prohibit insurrection and if you are convicted of that, you are it says shall be disqualified from holding any office. and so there is a federal statute on the books, but president trump has not been charged with that. so what are we do make of that? >> two things, your honor. section 2383 was initially enacted about six years before section three. it wasn't meant as implementing legislation relating to section three. and i'd emphasize that by the time that section three was ratified, most confederates had already received criminal pardon. >> i guess the question is a little different, which is if the concern you have, which i understand is that insurrectionists should not be able to hold federal office,
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there is a tool to ensure that that does not happen. namely federal prosecution of insurrectionists. and if convicted congress made clear you are automatically barred from holding a federal office. that tool exists. you agree. and could be used but has not -- could be used against someone who had committed insurrection. you agree with that. >> that is absolutely right, your honor. but i'd just make the point that the framers of section three clearly understood that criminal prosecutions weren't sufficient because oftentimes insurrectionists go unpunished as was the case in the civil war. and that the least we can do is impose a civil disqualification penalty so that even if we don't have the stomach to throw -- >> so they had the provision in effect from 1870 until 1948, but then obviously that crodrop thet and not seen necessary since then. last question. in trying to figure out what section three means, to the extent it is elusive language or
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vague language, what about the idea that we should think about democracy,en ab think about thet of the people to elect candidates of their choice of letting the people decide? because your position has the effect of disenfranchising voters to a significant degree. and should that be something -- does that come in when we think about should we read section three this way or read it that way? what about the background principle and if you agree of democracy? >> i'd like to make three points on that, justice kavanaugh. first is that constitutional safe guards are for the purpose of safe guarding our democracy, not just the next election cycle but for generations to come. and second, section three is designed to protect our democracy in that very way. framers of section three knew from painful experience that those who had violently broken their oaths to the constitution couldn't be trusted to hold power again because they could dismantle our constitutional
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democracy from within. and so they created a democratic safety valve. president trump can go ask congress to give him amnesty by two-thirds vote, but unless he does that, our constitution protects us from insurrectionists. and third, this case illustrates the danger of refusing to apply section three as written. because the reason we're here is that president trump tried to disenfranchise 80 million americans who voted against him. and the constitution doesn't require that he be given another chance. >> thank you. >> justice barrett. >> so the general rule is that absent rare circumstances, state courts and federal courts share authorities, state courts have the authority to enforce the constitution but there are certain limits to that, certain situations in which the constitution itself preempts the state's ability to resolve constitutional questions. and you said earlier that once a president is elected, you accepted that state couldn't do anything about that. like you couldn't -- colorado
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couldn't enact its own provision and then use it to get the secretary of state or the president or anyone else out of office. and i assume that is because of this article -- >> yes, ushs. >> so you're saying even though all the questions that people have been asking have suggested there is a problem with giving a single state the authority to render a decision that would have an effect on a national election, but you're saying that those structural concerns which might otherwise lead to the kind of result that you would accept after someone is in office are overcome by the electors clause? >> absolutely. states run presidential elections. that is clear from article two. once states have elected quleek tor
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electors, states have no more power over the candidate. but until then the states have power to adjudicate those issues. >> thank you. >> justice jackson. >> when i asked you earlier about the uniformity concern and troubling potential disuniformity of having different states enforce section three with respect to presidenal elections, you seemed to point to history in a certain way. you said i think that the framers actually envisioned states enforcing section three. at least in some circumstances whether there were insurgents and confederates. in my view of the history, i'm wondering whether presidential elections were such a circumstance. that the framers actually envisioned states enforcing section three with respect to presidential elections as opposed to senatial elections, representatives, the sort of
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more local concerns. so can you speak to the argument that really section three was about preventing the south from rising again in the context of these sort of local elections as opposed focusing on the presidency? >> two points on that, justice jackson. as i discussed earlier, there is not the same history of states regulating ballot access at this time. so ballot access rules to restrict presidential candidates wouldn't have existed, they wouldn't have been raise the one way or the other. >> i'm not making a distinction between ballot access and anything else. >> understood. but the more broad point is what is very clear from the history is that the framers were concerned about charismatic rebels who might rise through the ranks up to and including the presidency of the united states. >> then why didn't they put the word president in the very enumerated list in section three? the thing that really is troubling to me is i totally
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understand your argument, but they were listing people that were barred and president is not there. and so i guess that just makes me worry that maybe they weren't focusing on the president and for example the fact that quleek tors of vice president and president will there suggests that really what they thought was if we're worried about the charismatic person, we'll bar insurrectionist eleak toelector that person won't rise. >> this came up in the debate where johnson said why haven't you included vice president and president and the senator said we have. look at the language, any office under the united states. >> but doesn't that at least suggest ambiguity? and this ties in to justice kavanaugh's point. we had a person right there at the time saying what i'm saying. the language here doesn't seem to include president, why is that.
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and so if there is an ambiguity, why would we construe it to as justice kavanaugh pointed out against democracy? >> johnson agreed with that reading. the constitution says about 20 times -- >> i'm not going to that. let me just say your point is that there is no ambiguity with having a list and not having president in it with having a history that suggested that they were really focused on local concerns in the south, with this conversation where the legislators actually discussed what looked like an ambiguity, you are saying there is no am big qu biquuity in section three in. >> let me take the point about electors. presidential electors were not covered because they don't hold an office. they vote. >> i'm talking about the barred office part of this. >> exactly. barred office is if you want to include everybody, first you have to specify presidential
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electors because they are not offices. so they wouldn't fall under any office. second of all, senators and representatives don't hold office either. the constitution tells us that under the in-combat ability clause and refers to see thes. so you want to make sure there is no doubt so you have to include them. the constitution says the presidency holds an office as do members of this court. so other high offices, president, vice president, members of this court -- >> let me ask you -- i appreciate that argument. if we think that the states can't enforce this provision for whatever reason in this context, in the presidential context, what happens next in this case? i mean, is it done? >> this this court concludes that coal ol dilorado did not h
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authority to exclude donald trump, i think the case would be done but it could come back with a vengeance because ultimately members of congress would have to make a determination after a presidential election if president trump wins if he is disqualified from office and whether to count the votes for him. and so he wants to resolve the issues on the merits and we think the court should do so as well. >> and no federal litigation you would say? >> that's correct. because there is no federal procedure for deciding these issues short of the criminal prosecution. >> thank you. >> thank you, counsel. mis miss stevenson. >> mr. chief justice, may it please the court, exercising its far reaching powers under the elector clause, the colorado
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legislature specifically directed colorado courts to resolve any challenges to the listing of any candidate on the presidential primary ballot before coloradoans cast their votes. despite the law petitioner contends that colorado must put him on the ballot because there would be a supermajority act of congress to remove his legal disalways. ability. colorado and every other state would have to indulge the possibility up to the moment an ineligible di ineligible candidate was sworn into office. this case was handled capely and efficiently by the colorado courts after a process we've used to decide ballot challenges for more than a century. and everyone agrees the court now has the record that it needs to support the constitutional issues. i welcome your questions. >> is there an express provision
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that define what is a qualified candidate is? >> no, your honor, there is not an express provision when the colorado supreme court looked at this, they looked at the need to be qualified plus the fact that this part was -- >> so what does it say if not express, how do we get to some issue of qualified candidate? >> what the colorado supreme court did, and if i could have a standing objection, i do want to make the argument that you shouldn't review the court's -- >> no, i'm looking at the statute. >> what the court did was to say that we have three important provisions in this section that show that candidates have to be qualified. first it requires that under 1203-2-a, that political party that wants to participate has to have a qualified candidate. it also looked at the fact that comparable write-in candidates also had to be qualified. >> but this is not a write-in candidate. so we're actually talking about the participation of a political party, right? we're not talking about the participation of a candidate.
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>> sure, i think that the fact that the write-in candidate also had to be qualified was confirmatory of the fact that the political party candidate also had to be qualified and it wouldn't be otherwise in congress to read those things differently. >> so how is section three a qualification? >> under the reasoning of the colorado supreme court -- >> no, just on its face. >> a candidate must meet all the criteria for eligibility and i don't perceive between eligibility and not being disqualified. >> thank you. >> you represent the secretary of state. right? >> that's correct, your honor. >> if you are the secretary of state and someone says i think this candidate should be disqualified, what do you do next? >> administratively and what the deputy elections director testified to at the hearing is that if they obtain objective knowable information, the secretary can act on that and inform of -- >> so the secretary first
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decides whether that is objective knowable information? >> in some instances. in this case it was before the paperwork was submitted and because there was already a challenge put into the proper court procedure, the secretary didn't even make that determination because she didn't have the paperwork. >> so in another case where that wasn't a procedure that was filed, somebody said maybe they have a stack of papers saying here is why i think this person is guilty of insurrection, not a big insurrection, something that happened down the street, but they say this is still an insurrection, i don't know what the standard is for when it ar arises to that. >> anything that presented that level of controversy that one person presented a set of facts would send the case to the 113 procedure that we use to resolve the ballot challenge issues like that. and if another elector or the individual who brought the information didn't want to bring it, the secretary herself could bring that action. >> is there is a provision for judicial review of secretary of
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state's action both in colorado and perhaps what you know about other states? >> certainly in colorado, any action that the secretary takes that anyone wants to challenge, they can use the 113 process do so. i think states have varying degrees. certainly other states allow versions of that and then i don't know whether there are others that don't. but there are some that do. >> i think we're told that there are states that do not provide for any judicial review of a secretary of state's determination. is that incorrect? >> no, no, i think that is right and some states actually have no no mechanism to come to. i think justin kagan's point, there are some states that don't have any mechanism to exclude a disqualified candidate from the ballot at all. and i do want to speak to that for just a minute about the actual -- >> would that be constitutional if the secretary of state's
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determination was final? >> i think so under article two, quleek tors clause, that would be constitutional. states have broad authority. >> could a state enact a statute that provides different rules of evidence and different rules of procedure and different standards of proof for this type of proceeding than for other civil proceedings? >> yes, your honor, i think it could. under the same qukree electors power. >> and perhaps the due process clause. >> bounds are other constitutional constraints which would include due process, equal protection, first amendment. >> what is the due process right, does the candidate have a due process right? what isliberty interests? >> i think it is not very precisely defined in the case law, but i think that there is a recognition that there is a liberty interest of a candidate and there is some due process
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interests in being able to access the ballot. >> i thought that was for voters. for the candidate too that it would be taking something away from the candidate? >> certainly yes and i think a lot of times you see that in the first amendment context where candidates can have an issue about being on the ballot but sort of a hybrid oftentimes first amendment, 14th amendment qualifications clause, all discussed together. >> let me ask you about just followup to justice alito. these decisions might be made different ways in different states, maybe a secretary of state makes it in one state with very little process or a process more like colorado could be followed by others. what our standard of review of the record, would it vary depending on the procedure employed by the state? >> i think this court has tremendous discretion to decide its standard of review and it might be based on the process that was employed by an individual state. i think that you could exercise the independent review mr. murray talked about or you could
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give deference where you have a full blown proceeding like the one here with all the protections of rules of evidence. and cross-examination, tngs like that. >> you think we should give deference in reviewing the fact all record, legal conclusions? what -- in other words, we shouldn't undertake de novo review? >> i don't think the review should be de novo. but i'm a menable to the suggestion that the court would do the independent type review that might provide greater certainty to states around the country as to what the court's position is on the factual record in this case. >> of course if it were not de novo, we could reach desperate results even on the same record prp. >> i think that is possible. >> i take if your position is this disfqualification is reall the same of any, age or residence or what have you? >> that's correct. >> and what if you were to push back on that and say this
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disqualification, number one, it is in the 14th amendment and the point of the 14th amendment was to take away certain powers from the states, number two, section three itself gives congress very definite role which mr. mitchell says is interfered with by the ability of states to take somebody off the ballot, and maybe number three, it is just more complicated and more contested. and if you want more political. and why don't all of those things make a difference in our thinking about this qualification as opposed to any other? >> so your honor, i think the trouble with the categorizing of the insurrection issue as necessarily more difficult, it is just an assumption that is coming up i think because of this case. and agn we could have a very easy case under the 14th amendment with an envowed insurrectionist who wrote on his paperwork i engaged in an insurrection and it would be open and shut case as to whether or not that person would meet
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the qualifications to be on the colorado ballot. with respect to your other questions about the 14th amendment, my positions are based on the assumption that under the 14th amendment the states have the power to enforce section three just like they do other presidential qualifications and i'd defer to the electors' arguments on those points. >> suppose a state that does recognize nonmutual collateral he he is stopple makes a determination using whatever procedure it decides to adopt that particular today is an insurrectionist, could it have a cascading effect? single judge fact you'll findings are given deference, maybe elected trial judge would have potentially an enormous affect on the candidates who run for president across the country. is that something we should be concerned about? >> i think that you should be
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concerned about it, your honor, but i think that the concern is not as high as maybe it is made out to be particularly in some of the amicus briefs. under article two, there is a huge amount of disparity on candidates that end up on the ballot in different states on every election. just this election there is a candidate who colorado excluded from the primary ballot who was on the ballot in other states even though he is not a natural born citizen. and that is just a feature of our process. it is not a bug. and i think with respect to the decision making and we're here so that this court can give us nationwide guidance on some of the legal principles that are involved, i think that reduces the potential amount of disparity that would a rise between the states. and then with respect to the fact all record and how that gets issued and implemted, states have processes for this. and i think that we need to let that play out and accept that there may be some messiness of federalism here because that is what the electors clause assumes will happen. and if different states apply
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their principles of company has ral collateral he is topple and come to different results, that is okay and congress can act.toppl to different results, that is okay and congress can act. >> anything further? >> one further question and it is along the same lines as a lot of other questions. we've been told that if what colorado did here is sustained, other states will retaliate. and they are going to potentially exclude another candidate from the ballot. what about that situation? >> your honor, i think that we have to have faith in our system that if people will follow their election processes appropriately, that they will take realistic views of what insurrection is under the 14th amendment. courts will review those decisions. this court may review some of them. but i don't think that this court should take those threats
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too seriously in its resolution of this case. >> you don't think that is a serious threat? >> i think we have -- >> we should proceed on the assumption that it is not a serious threat? >> i think that we have institutions in place to handle those types of allegations. >> what are those institutions? >> our states' own electoral rules, the administrators who enforce those rules, the court that will review those decisions and up to this court to ultimately review that decision. >> justice sotomayor. vus c justice kagan. justice kavanaugh. anything further? thank you, counsel. rebuttal, mr. mitchell. >> both mr. murray and ms. stevenson rely heavily on the electors' clause and the authority it gives the
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legislature of each state to direct the manner of appointing presidential electors. but that prerogative under article 2 must be exercised in a manner consistent with other constitutional provisions and restrictions. and justice kagan alluded to one of those. but there are others. a state cannot use its power under article two electors' clause to instruct its presidential electors only to vote for white candidates. that would violate the y'all protection clause. nor can it exercise its power in a manner that would violate the constitutional holding of the u.s. vers is thornton and they can't use the quleek tors' clause as an excuse to impose additional qualifications for the presidency that go beyond what the constitution enumerates in article between. and the problem with what the colorado supreme court has done, they have in a way changed the criteria in section three by making it a requirement that must be met before the candidate who is seeking office actually
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holds the office effectively moving forward in time deadline that the candidate has for obtaining a congressional waiver. there has still been no answer from the anderson litigants on how to distinguish the congressional residency cases where the courts of appeal, not necessarily this court, but the courts of appeal in apflying court's holding in u.s. term limits have unanimously disapproved state laws requiring congressional candidates to show that they inhabit the state from a which they seek election prior to election day and still in our view no possible way to distinguish those from the situation below in the colorado supreme court. mr. murray also invoked the de facto office of doctor raate as possible way to mitigate the possible decisions that would follow.
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this court's recent decisions held that officers who are unconstitutionally appointed under article two and that made decisions under the apa that were attacked as invalid, they were still vacated and the court did not use any variant to salvage the decisions made by the unconstitutional appointed officers. there is no way to escape the conclusion that if this court rejects griffins case and also agrees that every executive action taken by the trump administration is vulnerable to attack and if president trump is reelected and sworn in as the next president that any executive action that he takes could be attacked in federal court by anyone who continues to believe that the president is barred from office under section three, i'm happy to answer any other questions the court may have.
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>> thank you, counsel sell. t . the case is submitted. >> the honorable court is now adjourned until friday -- >> so the case is submitted signaling the end of arguments. we heard all nine justices asking questions at different points in this case. let's talk with our experts. laura coates, i defer to you, but it did not seem to me as though anybody in colorado should be popping their champagne. >> no. and the reason is that you have pretty clear indications here that the court was not swayed by this idea that colorado wins, if that is the right term, should decide for the entire nation. they talked about it being nationalistic and also about the idea of hold on a second, how can we decide this without having to determine what it means to engage in an insurrection? how do we get there, how does an individual state make this conclusion and still have the constitution protected? this is not a good sign for the
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colorado decision to try to remove him from the ballot. it seems that the court is very much leaning, and what justice jackson said, if there is ambiguity, why should we construe it against democracy. >> interesting. so steve, it did seem as though there were a majority of justices not just the six right leaning justices if we can still say that, that are looking for an off-ramp, looking for a reason to not uphold what the colorado supreme court did. >> absolutely. and we went into the argument saying how much of it will be about the off-ramps, how much will it be about insurrection. and by my count we got 53 minutes in to colorado's argument, the very, very last question from justice jackson the only question about the merits. sometimes you walk out of oral argument not knowing what the court is going to do. maybe the justices are asking hard questions to both sides. sometimes you walk out knowing how this is going. and this really feels like
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seven, eight, maybe all nine justices for a very narrow holding that colorado by itself can't disqualify a candidate for the presidency without touching what a federal court could do, without touching what congress could do, without touching what states could do to members of congress, to senators. and i think what we heard in the oral argument was justices across the ideological spectrum saying this really shouldn't be up to colorado. of course then the question becomes what happens next, what is left for enforcing the insurrection ban in section three against someone who a lot of people violated it. >> and that is not to say that they are going to have a majority of supreme court justices saying that donald trump did not engage in insurrection. probably just going to avoid that question to begin with. they are just saying a state cannot decide a federal issue of such import, right? >> i think that is exactly where this is headed. and we just heard two hours
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heavy with legalees. we heard about nonmutual collateral estoppel and cases from 1800s. to me what is clear what is driving all nine justices is just the practicality of this, the real world impact of this. if they let colorado disqualify donald trump, then we could have a scenario where some states disqualify a candidate and others don't. and that would be a problem politically. practically. and they also taunked about the possibility that if one state, one pivotal swing state disqualifies a candidate, that could swing the election of the president who serves the entire country. so as much as there was deep dives there on the legalees and ancient cases, to me what drives the supreme court justices is pragmatism and practicality. >> and i want you to take a listen to this from justice kagan, appointed by president obama, certainly former solicitor general for president obama, certainly not a conservative by any stretch. but somebody who tries to be fair. will
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take a listen to her. >> i think that the question that you have to confront is why a single state should decide who gets to be president of the united states. if you were from colorado and you were from wisconsin or you were from michigan, and it really -- you know, what the michigan secretary of state did is going to make the difference between, you know, whether candidate "a" is elected or candidate "b" is elected, that seems quite extraordinary, doesn't it? >> no, your honor, because ultimately it is this court that is going to decide that question of federal constitutional eligibility. and settle the issue for the nation. >> was jason murray's answer sufficient there? >> i don't think anything he was going to say would be sufts. because where there is a will there is a way. and this court from the get-go, from the first minute of argument made clear it does not want to go down the path of disqualification. and they are going to take the best off-ramp they can find. and it wasn't -- it is not even clear to me this was even one of the off-ramps that the trump
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people really offered. they are not going to buy the officer argument which is i think a bad argument. >> they won't buy the argument that since the presidency isn't mentioned ex-policplicitexplicit buy it. >> and they won't buy that it can only be enforced by congress. they will write much narrower saying the states cannot individually do this. >> to the president. >> to the president. but the problem is -- so that is the off-ramp. they created their own special little off-ramp. they are building it out themselves. they don't have the plans for it yet. they will have to figure it out the next few weeks. and the funny thing about it, we don't know where the exit will end. because the question of what happens if he is an insurrectionist and you do -- the states don't disqualify him,
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ll, he gets elected, what did you do then? it is not clear. so we don't know where this off-ramp goes, but they are happy to just get off the highway. >> and you joked about the idea of the legalee, but you know how they knew that the court was well aware when the world was listening? when chief justice roberts tried to break down you mean this case, not term limits -- he is well aware of who is listening and why. >> and i was struck listening to elena kagan and someone appointed by president ballistic missile, yes, they are speaking in legalees, but she sounded like a lot of elected democrats often sound when they talk about this. if you listen to gavin newsom, california said we'll wait. but the idea was that we would basically leave trump on the ballot. they are making the argument that they are staying away from this by and large at least the most competitive i would say campaign minded democrats from
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the idea that you should be banned from the ballot and saying instead that he should -- donald trump should be beaten at the polls. and i heard that in kagan's argument. >> and one of the other things, we've talked about bush v. gore, the decision that the u.s. supreme court made in the year 2000, and one of the things that was not great about that decision was when they basically said we are making this ruling once and nobody ever speak of it again. this is not precedent. that is it. this is an extraordinary circumstance. and that is the opposite approach is that this court is taking. this court is looking down the road. not just at donald trump, but at how this could be used in the future against any -- you don't agree? >> we'll come back to it. >> let me just before george says i'm wrong, let me -- that is a case where we saw the court get involved in the election. and if we read the room
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correctly and it certainly sounds like as we said at least a dozen times they were looking for an off-ramp today, but let's go to a word that we use with donald trump a lot. which is chaos. because they have their off-ramp. but as george said, we don't know where that is going. who is going to decide this in the end. >> let me interrupt, sorry, because the man at the center of all of this donald trump is speaking. we'll listen because this case involved him. >> -- i consider it to be more election interference by the democrats. good news is we're leading in virtually every poll. we're leading the -- i don't even know if we have anymore, not sure that we have that the republican candidates, somebody running. but not making any impact. so as you know, we won iowa, we won new hampshire in records, each one a record. i think that we'll do very well, i'm heading out right now to
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nevada for the caucuses. and i think that we'll do very well there, all the polls indicate we're in the 90s. maybe more than the 90s. certainly did well in a primary that didn't matter where they voted very nicely. and we have tremendous support from the people of our country. they hate what is happening at the border. they hate what is happening just generally, we're not a respected country anymore. we're laughed at all over the world. they are laughing at us and they hate what is happening. they hate seeing it. they love our country and they want to come back and we'll do that. if you think about it, had results of the election been different, i'll be nirksce, you wouldn't have the ukrainian situation with russia, you would not have had an attack on israel which was so horrible, you would not have had inflation, you wouldn't have china talking about taiwan, you wouldn't have any of the problems that we have today. and you certainly had a broke
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iran and now you have a rich iran. iran was broke when i left. no money to give to hamas -- >> okay. i think we've gotten all the legal analysis we'll get out of president trump. it is odd there because -- >> can i just -- >> this was actually an opportunity for him to say -- >> no, because he wants to talk about himself. he doesn't want to talk about the supreme court. say oh, the supreme court did a nice job. he just quwants to talk about w on his mind. >> can i say someone didn't tell him that it sounded like good news for him today. clearly. it wasn't just the rambling sort of campaign speech. but if he had listened to the analysis afterwards, he would know that it sounds like he is in good shape. >> or george's point which is that he doesn't even care. he just wants to change the subject back to whatever his -- >> but jake, he will care when the court acts on the immunity
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case. that is the real question now. justices will go back, they will vote in their private conference for how they will come out in this case. and then next week they will get an emergency application from president trump seeking to further delay the january 6 prosecution here in d.c. and they will vote on that request knowing what has happened in the colorado case. >> so just to translate that, it seems likely that colorado is not going to be victorious. that is our guess based on what we heard from the justices including the democratic appointed justices. >> i'd put money on it. >> in any case, at the same time, that case is before the u.s. supreme court today, there is this other case which is the u.s. court of appeals which is under the u.s. supreme court,
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has said that donald trump is not immune from prosecution in a separate case of january 6 case. and donald trump as steve referenced is going to appeal that to the u.s. supreme court and the guess that the legal minds here are making is that the court will just decide to not even hear that argument. >> by the way, that is on monday that they have a deadline to actually file something on the trump team. not a deadline for the supreme court. they have their own private -- but what it is telling them is figure out that it will not have an impact -- >> i have to interrupt. i'm told donald trump is talking out legal matters. >> it is election interference and really very sad. i thought the presentation today was a very good one. i think that it was well received. i hope it was well received. you have millions of people that are out there wanting to vote and they happen to want to vote for me or the republican party. and whatever you want to -- however you want to phrase it. but i'm the one running. and wleerdie're leading in ever.
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we're lead managemeing in the l polls, state polls, swing state polls and very big in the national polls. so it has been a great honor. we love the country. i think that the reason we have such big leads frankly is that they loved four years of us compared to the three years that they have gotten with biden. we have open border, you have crime. nobody has seen crime like this, what is happening. and now the crime is being committed much of it by migrants that have come in illegally to our country. i was wondering about that, i said you know, a lot of these people come oufts jails, out of mental institutions, they kouft pl come oufts places that we don't know who they are, where they are. they are being dumped in from mental institutions, from prisons and jails. and many terrorists are coming in to our country. we'll be paying a big price. they have to stop it, they have to close the border. by the way the president can do it just would i saying -- >> okay, let's bring away from
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the former president and talk to joan. our tea leaders here say they think that it sounds like a number of justices, clearly a majority potentially even 7, 8, 9 justices looking for an off-ramp to not uphold the colorado supreme court banning trump from the ballot. what say you? >> reporter: one of your panelists had a reference to reading the room and i'd say in the room the argument ended much earlier than 12:15, 12:30. jonathan mitchell standing there defending the trump position really did not get a lot of tough questions. we referred to this court as having a hot bench. this was a rather tepid bench today. i could see john roberts actually getting unanimity, getting all nine justices to say that the colorado supreme court erred as it ruled. they would probably splinter a
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bit in their grounds, whether it is that states don't have this kind of authority or that congress has to take some -- make legislation to have it take effect or go to the officer point that i'm sure you've already discussed that the presidency simply isn't covered by the officer language. but you could feel it early on that they were not giving him the hard time that they often give an advocate who they will challenge. and i think that part of it is, you know, when this first started, so many people thought it was kind of an outlandish case that it was, you know, something that started in academia, that it wouldn't have legs, but the colorado supreme court, you know, by a single vote, 4-3 decision, said yes, donald trump should be eliminated from the -- >> joan, i'm being told that i need to enter -- sorry, i need to interrupt. because former president trump is taking questions i'm told.
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>> -- i got the gist. >> -- morally responsible for -- >> he doesn't say that anymore. so let me just tell you that i heard and i watched and the one thing i'll say, they kept saying about what i said right after the insurrection. i think it was an insurrection called by nancy pelosi. if this was an insurction, which there were no guns and no anything except for the fact they shot ashley babbitt. so sad, so horrible. but no guns, no anything. but if you look at my words right after, you look at my speech from the rose garden, which was very shortly after, or you look at my -- i'm only on truth now. but that the time i was on twitter. if you look at those five or six tweets, you will see very
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beautiful, very heartwarming statements, go home, the police are doing their job, eitt ceter et cetera. if you see my statement in the rose garden, and i think you have to watch that because today they said the words of trump. if you look at the words of democrats over the last period of time, you look at the statement from schumer on the steps of the supreme court, he sounded like a mob boss. take a look at any of them. take a look at -- we put together a tape, vicious violent statements made by democrats. nobody brings that up. take a look at maxine waters and the vicious statements she made. i didn't do that. i said peacefully and patriotically, the speech was called peacefully and patriotically, peacefully and patriotically. he said i said a bad statement and it was the exact opposite. so take a look at the statements that i made before and after. and you will see a whole
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different dialogue. >> you mentioned president xi and that he would -- [ inaudible ]. you can explain your rationale? >> we want to bring business back to the u.s. they are taking our business at levels that nobody has ever seen before. by doing that, we bring business -- >> all right. it's turned back to a campaign appearance. let me go to kaitlan collins outside of the supreme court. it appears from the questions asked that donald trump's side had a good day at the supreme court today. >> yeah, it is interesting though what he is getting in to there is really not even something that his attorney who is arguing before the nine justices taking their questions got into in much of those arguments which is actually what happened on january 6 and trump's role that day. he was referencing there parts of his speech on the elipse that day where he told people to be
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peaceful, he ignored how he also told them to fight like hell or they wouldn't have a country anymore or how long it took him to urge the rioters to go home despite how he and his top aides were having many conversations about that with his own, you know, children, pleading with him to put out statements. and yet he declined to do so for hours. of course we heard much more from donald trump as he was standing outside mar-a-lago preparing to go to nevada and weighing in on what happened today. for more, i want to bring in daniel. several fact checks in the former president trump's comments including the woin just heard about crime alone saying crime is up when actually in 2023 most crime in major categories was actually down. >> yeah, and he also said this was an insurrection caused by nancy pelosi. that is an insane statement. that is beyond fact check false. that is completely deranged. this was a mob of pro trump supporters called to town, urged to be wild by trump himself.
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nancy pelosi tried to protect the capitol, tried to summon national guard troops. completely bonkers nonsense. he also said there were no guns, something we've heard again and again from him. there were in fact guns. we may never get a complete list of how many guns were there because most of the rioters were permitted to go home without are a, but some were arrested with guns. i have a list here. there were two loaded handguns, sentenced to police upon. and from texas, from maryland, a pace to pistol during the riot. so this idea that it has taken hold in parts of the right fueled by trump that there were no guns that day completely not true. >> and also they used other weapons including flag poles and spray to beat up the cops. and then just one more of course, he talked about the mental institutions and people letting immigrants out and coming into the u.s. we also asked the trump campaign
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for facts on that and they have never been able to provide any evidence. daniel, thank you. and i want to go back to joan who was inside the room as justices were hearings arguments. you were telling us what it was like to be in the room and what your sense is as someone who study thies this court how theyl take the arguments. >> reporter: thanks. yeah, just reality check. however they vote here in favor of donald trump, and they will, it will not be because they are in any way endorsings kinds of things he was talking about there. his role in the insurrection is not central to where they are headed. where they are headed is another reality check against theoretical argument here that one state and several justices said that one state could eventually keep a candidate off the ballot and would affect every state just as elena kagan oi a democratic appointee was on the right side of the bench on
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this. it would be extraordinary she said. and chief justice john roberts stressed how consequential this could all be. and in terms of the body language, this is not one of their harder cases. i could just feel once the rhythm got going, once i don't know than mitchell stood up there and they were kind of soft on him compared to where they have beendon'tknow than mitchelp there and they were kind of soft on him compared to where they have been against any advocate, you could feel the tide was already going in a certain direction. and jason murray on behalf of the colorado voters got so many questions about how impractica this was and how could it possibly be what the framers of the 14th amendment wanted. and even justice jackson, who is the one member of the bench who had some personal experiences at trial court judge handling january 6 defendants, said that she -- she suggested that this provision of the 14th amendment wouldn't cover donald trump.
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and as i say, it was kind of a reality check bringing people back to where we all were in the beginning on, you know, this theory that state could keep a candidate off the ballot. now, one thing that i would say, as much as i said that this is an easy case for john roberts to get an easy majority if not 9-zip here, it will be a little bit in the writing, but they don't need to be's unanimous. the key question is did the colorado supreme court err in some way and they could say that 9-0 and splinter in their rationale. inevitably we won't see a case exactly like this. >> fascinating to hear your insights since you were inside the room. we'll check back in with you. and paula reid, we were listening to the entire argument together. and what she was talking about is great context there with justice ketanji brown jackson because they never really got to
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the question of the insurrection itself until right at the end of those first set of arguments with trump's attorney. and we have that moment. i want to remind everyone what she was asking and what trump's attorney said about that. >> we said in you're opening brief is that president trump did not engage in any act that can plausibly be characterized as an insurrection. >> what is your argument that it is not your -- your reply brief said it wasn't because -- i think you say it did not involve an organized attempt to overthrow the government. >> that is one of many reasons. for an insurrection, it needs to be organized concerted effort to overthrow the government of the united states through violence. >> so is that chaotic effort? >> we did not see an effort to overthrow the government either. none of the criteria was met. this was a riot, not an insurrection. the events were shameful, criminal, violent, all those things but did not qualify as insurrection as that term is
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used in section three. >> that is notable because this is the first time we've heard the question of whether this is an insurrection. and it is not surprising that it was ketanji brown jackson who brought it up. because she was actually still on federal trial judge when the first batch of arrests was made in early 2021. and she oversaw some cases. and at least one of the hearing, she made it clear how serious she thought this insurrection was, what a threat she believed it was to democracy. based on the questions we heard today from the justices, it is unlikely that they will touch this as a collective here. she waut was at least able to get on the record with this and it is notable you heard trump's lawyer at least concede that this was criminal.the record wi notable you heard trump's lawyer at least concede that this was criminal. hun hundreds of people have been charged. >> and he noted that they are making the argument that trump has presidential immunity. and as we were listening to trump's attorney as he came back to rebut the argument that's
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heard from the plaintiff's attorney and fm the colorado solicitor general? >> what stuck out to me is this is the best hearing that the trump legal team has had in recent moerm. and it is not just because the justices seem sympathetic to their case. it is also just how this was handled. jonathan mitchell is very experienced before the justices. this issixth time, but he focused so the law. we've seen great lawyers in federal courtrooms sometimes saying things that otherwise they wouldn't if they weren't representing the former president. appearing to play to an audience of one. sometimes getting contentious exchanges with judges. today we saw none of that. even when a justice appeared a little skeptical of his argument, he was able to manage them in a way that did not make it contentious at all. it was really interesting to note how he focused on the merits. he focused on the law. and remained respectful. complete contrast to what we've
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seen two civil cases recently in new york. so interesting to see going forward, is this the new approach that they take to legal proceedings. let lawyers go in, and do serious disciplined work inside the courtroom and if the former president wants to go outside and argue about an insurrection and score political points, he can do that because today legally this is likely going to pay off. >> and also skeptical that that will be the direction he takes. >> hope springs eternal. >> it was also interesting to see how when trump was not in that courtroom -- or in the supreme court, some of his attorneys not arguing this in there, but when he came out just now and initially speaking about this, he didn't seem to resonate with what you just said there. that this was more successful day compared to over the days we've seen with his attorneys. >> yeah, he's surprised that we're here at all, but this is
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also a campaign speech. he called it as you heard this is election interference. so even though you have a day where supreme court where he appointed leave the justices seeming to take his side perhaps even 9-0, he is arguing that this is somehow election interference. that is an argument that he has made across civil litigation, criminal cases, here at the supreme court, and so it really didn't seem to be a fle a refle of how the argument went. just what he will say no matter what. >> and revealing into the insight of how he sees the supreme court. because he has been wary of how they will treat him in the way that he kind of sees how legal processes play out when it regards him personally. and i mean, his attorneys have made clear that he does expect some kind of sense of loyalty i think is the word was used because there are three justice that's nominated to the supreme court. but he has been approaching this from what our reporting is maybe not this case, but certainly the presidential immunity one with
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wariness of how they will rule ultimately if they do take that case up. >> yeah, you appoint a third of the court that you will go up against, he should be nervous if the justices will take that appeal and if he would prevprev. here they seemed to suggest that they will likely rule in his favor. immunity even sources in and around his legal team will concede it is not their strongest argument. the idea that the president has absolute immunity, that is not something that is likely to prevail at the highest court. they lost at the trial court, the district court. but really not about the maerit but just the possibility that they will take it up. the strategy is about trying to delay the federal case until after the 2024 election. because if trump is reelected, he likely through his attorney general could make both jack smith federal prosecutions go away. so while he should be feeling
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good about what happened today legally, going forward there is an enormous amount of legal peril that he is facing and even though he is appointed a third of the court, unlikely that they will be able to help him much. >> but they have a new deadline already. the court says we'll see you back february 16. they have a new deadline already on monday that immediately his legal team is dealing with, they have defiled that emergency appeal to the supreme court which we know they will do. what have you heard about how they will approach that? because all of their arguments that they made in front of the other courts down the road from here were rejected by the federal appeals court including. >> so normally they would ask the entire circuit to hear their case. do they thing they will win? probably not. but if the goal is delay, that is your next step. but the way the circuit decided this,
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and box him in by monday that they intend to appeal. i was asked by the people who worked on this, leave them alone. i've already texted them. we are already taxing them to get the scoop. the supreme court, what are you going to do? going forward, they need to map out. are they going to fight that this circuit says you can't debunk? why does the former president have that right? do they want to litigate that? i'm guessing they might, but i don't think they've thought through the mechanics of how they are going to go forward. the big question is going to be, how long does it take? either the circuit or the supreme court to get back to them on what they are going to do? every day is a gift to trump and the legal team. every day, it takes them to decide, it is one day closer to november 2024 election. one day that is less likely for jack smith to prosecute them. >> the thank, you and what a role that the supreme court is going to have in this election. >> it's just one case. they're going to weigh in on
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another one, probably starting next week. they're going to -- be there covering donald trump'scampaign president trump in mar-a-lago. kristen, interesting, not uncharacteristic that donald trump had a pretty good day in court. it seems more focused on grievances many talked today. >> reporter: jake, all of us is changing it into a campaign moments into the speech -- he started talking about iraq, the war in israel and hamas. he started saying that joe biden was a bit bad president. really trying to turn every sentence back into the campaign . i want to point out one thing. i know we went back did not do he said had the election results been different, i wish they had been different. clearly trying to moderate his
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language there on a topic that still again, publicly and privately almost always doubles down on. saying election interference, the election was rigged. that was interesting to me to stand up. i want to be very clear, because obviously we have said this many times in 2016. i did not in any way think that this is donald trump pivoting or changing his rhetoric. i think that today, this day after the supreme court arguments, he soft and the language that he had used in the past about a rigged election. >> interesting, kristen holmes, thank you. my panel is back with me. casey, as i said, can donald trump could've come out and said what a great supreme court. even the liberal justices seemed to understand the logic of my arguments and what colorado is doing does not make any sense legally. instead, he likes to talk about how unfair the world's, grievances, he focused on that.
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>> that's basically his campaign strategy, especially in the context of the still ongoing, although they want to ignore, republican primary where this is animated a lot of republican voters. one thing that stood out to me is that he is usually pretty free in his criticism of these institutions, the judges themselves, the debt -- gag order in the united states was literally trashing staffers for the court. he's not doing that here. he did not show up in the courtroom. he could have in theory, but clearly somebody talked him out of that. you do institutions, pointed at the supreme court, considering the role they will play in the election. >> it's not as though he doesn't have grievances about them for their refusal to hear cases in the 2020 election.
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jamie gangel, there was a moment where we ketanji brown jackson had the floor. i want to get your reaction to it. >> if we think that the states cannot enforce this provision for whatever reason in this context, in the presidential context, what happens next in this case? is it done? >> if this court concludes the colorado did not have the authority to exclude president trump from the ballot on procedural grounds, then i think this case would be done. i think that it would come back with a vengeance, because of -- ultimately members of congress would have to make the determination after a presidential election if president trump wins. whether or not that he is disqualified from office. >> that struck me for two reasons. one, steve was going -- [laughter] it really did seem to put a point on everything that we have been seeing about where the court appears to be heading.
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the other reason is, what happens next? the chaos. if they rule that colorado cannot do this, what is the next step? let's have a hypothetical, even though justice gorsuch doesn't like them. donald trump is the republican nominee. donald trump wins the election. then what happens? does this come back? who enforces it? who says that he is removed? can you imagine republican voters, trump supporters at that point? if we are in that moment, that is not going to happen. >> i can imagine. just to spell this out for viewers a little bit, the question is, the supreme court decides in got out ahead of their skis, you cannot do this. hypothetically, donald trump wins, a democratic congress
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wins, a democratic house and senate win. are they now able to, as the supreme court has said, the u.s. supreme court has said that it's not for the states to do this. does the democratic house say, that it is for us? donald trump is the violator of the insurrection claim? >> that's exactly the concern that jamie is raising. we could have january 6th 2025, turning into a different type of joint session where you have objections to electoral votes in states where donald trump -- former president trump wins the state. you have democratic members of the house and senate coming together to say that we object to these votes on the ground that we believe president trump is disqualified because of inception three. at that point, we have a serious problem. you have democratic control of both chambers, generally most of those successions could be sustained. >> that is unlikely. >> but we have no idea. i would've thought the january 6th 2021 would've been
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unlikely. >> but casey's point is right. if you're john roberts, the chief justice of the united states, are you worried about this possibility? sure. you are also hoping against hope that is not coming to pass. i think that that day is out for now. maybe, just maybe, you actually increase the odds of that not happening. by letting the january 6th prosecution going forward. by staying out of -- and denying whatever president trump files on monday, letting jack smith bring that case to trial. maybe there is a conviction before the trial. maybe that convection moves enough voters that might have otherwise supported donald trump. maybe that's bears donald ship of -- the supreme court having to do anything else. >> ali, whatever the majority decision, is which we think that it is, in favor of donald trump, we prescribe that this is what we think the way to do this would be. they're not going to do that, right, that's too difficult. >> that's right. the job of the supreme court is
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not to give us a's perfect road. almost every decision gives us a -- and somebody else takes a provisional law to a insane decree, a wild scenario. to his point, this case appears to be open. he will be on the ballot in -- maine, and other places. there's a bigger battle ahead. this community question. let me be clear about the stakes. if the supreme court doesn't take this case, if they say that we are not taking this case, we are almost certainly going to see a trial here in washington, d.c. for january 6th this summer or so. the verdict coming down late summer. if the supreme court does take this case, or there are more justices, the chances we have a trial before the trial are very small. >> do you think that ultimately, the supreme court that rules in favor of trump, that there will be four justices. there's only four to take up a case. do you think that they will be there for six justices theoretically that will say we
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are not going to hear the case? >> i would predict that the supreme court not wanting to split the baby here. they could be quite clean, simply saying no, on this issue of colorado. ballot disqualification. then he could intern say, will hang on a second, the lower court ruling, the dc circuit court of appeals suggests that we might have the same conclusion. why should we put our own spin on it if it is called a concurring opinion? that is a political calculation. i get to legal things that are clean, but you put them together and -- [inaudible] i'm going to finish my point. hold on. the point of splitting the baby portion of it is, yes, there are political calculations always at stake for the supreme court from the perspective of the voters during the election year. the question of immunity is about checks and balances. the question for the other aspect is, can you disqualify somebody under section


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